Kiran Raj

The High Court of Jammu & Kashmir and Ladakh has upheld the acquittal of two individuals accused of drug trafficking, dismissing an appeal by the Union Territory of Jammu and Kashmir. The court ruled that the prosecution failed to establish guilt beyond a reasonable doubt due to procedural lapses in investigation, improper sampling, and contradictions in witness testimonies. It emphasized that adherence to mandatory provisions under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) is essential for securing convictions.

The case originated from an incident on November 5, 2013, when a police patrolling team at Magger Khad in Kathua district apprehended two individuals allegedly carrying a total of 10,000 capsules of Spasmo-Proxyvon (SPM-PRX), a psychotropic substance. The police claimed that 6,000 capsules were recovered from the first accused and 4,000 from the second. Upon investigation, charges were filed under Sections 8, 21, and 22 of the NDPS Act.

The prosecution alleged that the accused had procured the contraband from Punjab for illegal distribution in Kathua. Following the arrest, the police conducted seizures, recorded witness statements, and sent samples for forensic examination. The trial court, however, acquitted both accused on October 8, 2015, citing inconsistencies in the prosecution’s case, procedural violations, and failure to meet the burden of proof under the NDPS Act.

The Union Territory government challenged the acquittal, arguing that the trial court failed to appreciate the evidence and overlooked the presumption of culpability under Sections 35 and 54 of the NDPS Act, which shifts the burden of proof to the accused once possession of a commercial quantity is established.

The High Court examined the trial proceedings and identified multiple deficiencies in the prosecution’s case, particularly in the process of seizure, sampling, and investigation. It noted:

1. Contradictions in Witness Testimonies: The court found discrepancies regarding the time of the incident. One key prosecution witness stated that the seizure took place at 5:30 AM, while others claimed it occurred at 5:30 PM, casting doubt on the sequence of events.

2. Improper Sampling and Sealing: The court recorded that the procedure for sampling and resealing the seized contraband did not comply with the mandatory provisions of Section 52A of the NDPS Act. It observed: "It is clear from the prosecution case that the sampling of the seized psychotropic substances was not done as per the procedure. The same is a fatal flaw in the prosecution version of the case."

It also noted that the samples were sealed without the magistrate’s direct supervision, undermining their evidentiary value.

3. Delay in Sending Samples for Forensic Testing: The prosecution failed to send the samples for forensic analysis within the prescribed 72-hour period, raising concerns about potential tampering. The court cited the Supreme Court's ruling in Union of India v. Mohan Lal, which stressed the importance of timely sampling and testing in NDPS cases.

4. Failure to Follow NDPS Act Safeguards: The court observed that compliance with Sections 52 and 57 of the NDPS Act, which mandate immediate production of seized contraband before a magistrate and timely reporting to superior officers, was lacking. It stated: "The non-compliance of the mandatory requirements under Sections 52 and 57 of the Act, in the facts and circumstances of the case, casts doubt on the genuineness of the prosecution’s version."

5. Burden of Proof and Presumption of Culpability: The court observed that while the NDPS Act allows for a presumption of guilt upon proof of possession, such a presumption only arises if the prosecution first establishes foundational facts. It observed: "The prosecution must first prove the essential elements of its case beyond reasonable doubt before the burden shifts to the accused to prove their innocence."

Based on these findings, the High Court ruled that the trial court correctly acquitted the accused. It held that the deficiencies in investigation were fundamental and that the prosecution failed to meet the high standard of proof required under the NDPS Act. Dismissing the appeal, the court remarked: "We are of the considered view that the learned trial court has rightly appreciated the law as also the evidence while passing the impugned judgment. The opinion of the trial court that the prosecution has failed to establish the guilt of the accused beyond any shadow of doubt does not call for interference."

Additionally, the court expressed concern over the increasing instances of drug-related offenses and the need for more professional and rigorous investigations. It urged law enforcement agencies to adhere strictly to procedural safeguards, stating: "Illicit drug trafficking has serious consequences, particularly for the youth. Investigations in NDPS cases must be conducted with utmost responsibility and fairness. A casual approach undermines the public’s faith in the criminal justice system."

Case Title: Union Territory of Jammu and Kashmir v. Farman Ali & Anr.

Case Number: CrlA (AD) No. 42/2022

Bench: Justice Sanjeev Kumar, Justice Mohd Yousuf Wani

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