Chennai: Noting that there is no proper system to keep the contraband seized in safe custody at the police station during the trial or even prior to the production of the same before the trial court and there is no mechanism to weight the contraband seized, the Madras high court has issued a set of directions to be followed strictly by the courts below and the prosecution in future.
Allowing an appeal from an accused Danraj, Justice R. Suresh Kumar issued a set of 12 directions and posted the matter on June 10, 2019 for filing compliance report of the directives, by the Director General of Police.
Holding that the prosecution has failed to prove the case beyond reasonable doubt, the judge set aside an order of the Special Judge for NDPS Cases, Chennai, convicting and sentencing Danraj to 7 months RI in a NDPS case.
The case of the prosecution case was that on receipt of information about the indulgence of illicit sale of Ganja by one Danraj, the police went to T.P. Chatram and seized 1 kg and 200 grams of ganja and arrested him. The trial court convicted and sentenced Danraj to 7 months RI and imposed a fine of `5,000. Aggrieved, Danraj filed the present appeal.
Citing various judgments of the high courts, the judge said even though there was a directive by a magistrate to produce the contraband before the trial court on August 21, 2009, the same had been produced only on September 15, 2009 with the delay of 26 days. No reason whatsoever has been given by the prosecution for such delay. No such safety custody/malkhana register has been produced by the prosecution to say that the contraband seized and produced before the trial court had been kept in the safe custody between August 21, 2009, and September 15, 2009, at the hands of the prosecution. “Further it seems that there is no system available either in the magistrate court or in the trial court to verify the weight claimed by the prosecution about the contraband. This is very important in respect of narcotic substances are concerned, because the punishment under section 20 of the NDPS Act varies depending upon the quantity of the Narcotic substance possessed by the accused”, the judge added.
The judge said though it was claimed in each of the case by the prosecution that a particular quantity had been seized from the accused, the same has never been verified by measuring the contraband either at the Magistrate Court where it was produced at the first instance or at the trial court where it was produced by the prosecution. “These lacunas would go to the root of the matter, as the system being followed as of now appears to be not a full fledged system, where under, the accuracy of what is the weight of the contraband cannot be ensured, resultantly there is every possibility of miscarriage of justice in awarding the punishment if ultimately the court found the accused guilty under the NDPS Act. In the above legal and factual position, as far as the present case is concerned admittedly, there is no proof that the prosecution had produced the contraband before the trial court. The trial court has mechanically accepted the theory of the prosecution and has ultimately concluded that the prosecution has proved their case”, the judge added.
