Lapses committed by the investigators, prosecution officers, forensic science experts, trial court: HC
Srinagar: Observing that lapses were committed by the investigators, prosecution officers, the forensic science experts and the trial court in a case where two men were caught with suspected brown sugar packets in North Kashmir district of Bandipore in 2019, the J&K High Court has directed reinvestigation and retesting of the seized substances from the accused.
On their personal search, one polythene bag containing about 570 grams “brown sugar” in the form of powder was recovered from the possession of one Nazir Ahmad Dar and another polythene bag containing about 360 grams Brown Sugar was recovered from the possession of his pillion Mohammad Afzal Dar on 15th of March 2019 near Bandipore.
An FIR No.38/2019 u/s 8, 21 and 29 of the NDPS Act was consequently registered at Police Station, Sumbal and a charge sheet was presented in the principal district sessions court Bandipore.
The seized contraband was sent to the Forensic Science Laboratory (FSL) Srinagar for chemical examination. On 24th of April 2019 the laboratory opined that no alkaloids, barbiturates or amphetamines were found in the seized material after subjecting it to analysis.
The contraband brown sugar is an alkaloid.
The trial court after taking into consideration the FSL report, however framed the charges for commission of offences under sections 8, 21 and 29 of the Act against the accused currently lodged in the jail.
The accused plead innocence and seek nullification of the FIR and release from the jail.
The court despite framing charges against them also recorded that FSL report does not demonstrate the identity of the seized material.
A s the matter reached the High Court, after hearing the arguments it held that lapses on the part of the investigating officer, prosecution, FSL expert and the trial court were committed.
It directed the Investigating officer to further investigate the matter.
It asked him to get the seized material retested from the approved government laboratory having all the facilities of conducting the tests so as to determine whether the seized material recovered from the petitioners falls within the mischief of the NDPS Act.
The officer shall complete the further investigation within a period of 60 days.
“To prosecute and also to convict a person for commission of offence under the Act, it is necessary that there must be opinion from the Chemical Analyst/Scientific Expert that substance recovered from the alleged accused is either a narcotic or psychotropic substance, the possession of which has been made punishable under the Act”, the bench comprising Justice Rajnesh Oswal siad.
From the perusal of the FSL report relied upon by the prosecution, it is revealed that the substance allegedly recovered from the petitioners was subjected to certain limited tests only.
The High Court issued notice to the FSL Expert, who at the relevant point of time was the Head of the Division, Chemistry and Toxicology (Now Retired) and had conducted the chemical examination of the recovered material and was the author of the said report.
He appeared before this Court on 17.11.2020 and stated that only a limited tests were conducted for which the facility was available in the FSL.
The High Court expressing its anguish at the officer’s half truth and observed “it is strange that FSL Expert had not said so in his report which he otherwise being an expert was expected to do so”.
The role of Chemical Analyst/Scientific Expert particularly under the Act is to ensure that the reports submitted by them are not vague as the fate of investigation/ trial is dependent upon their reports, it said.
Lamenting at the style of handling of the case by the trial court, Justice Oswal said “once the trial court was of view that the identity of the recovered substance was required to be determined, then this Court (HC) fails to understand it could have determined the identity of the substance recovered from the petitioners during trial in absence of any retesting”.
He said “even in absence of any motion on the part of the prosecution for retesting of the recovered substance, as the accused was not expected to lay a motion for retesting because FSL report was running contrary to the prosecution story, the trial court could have directed the Investigating Officer for retesting the recovered material”.
Justice Oswal opined that that the that the trial court has fallen in grave error of law by charging the accused for commission of offences under sections 8, 21 and 29 of the Act in absence of the report of the Chemical Analyst that the substance for which the petitioners are being charged fell within the mischief of the Act.
The law is well settled that the trial court is not supposed to act as a post office even at the time of framing of charge and charges are not to be framed merely because the challan for commission of a particular offence has been filed against the accused persons, he said.
Justice Oswal opined that the order dated 15th of July 2019 passed by the trial court, by virtue of which the charges were framed against the accused petitioners “is not sustainable and set it aside.
He held that there is nothing on record that any prohibited substance or material under the NDPS Act has been recovered from the accused petitioners.
“They cannot be kept in custody” he directed and enlarged them to interim bail till the supplementary report is filed before the trial court.