A Delhi court has acquitted a Brazilian national in a 2016 case involving the alleged seizure of 3.69 kg of cocaine, holding that the prosecution failed to establish compliance with the mandatory provisions under the NDPS Act.
District Judge Atul Ahlawat acquitted Jailson Manoel Da Silva in the case filed by the Narcotics Control Bureau (NCB) under sections 8(c) (offences related to trade and production of any narcotic drugs), 21(c) (offences related to manufactured drugs and preparations involving a commercial quantity), 23(c) (illegal import into India, export from India or transhipment of commercial quantity of narcotic drugs) and 29 (abetment and criminal conspiracy) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act.
"Serious questions have been raised against the seizure and recovery proceedings, and the NCB has miserably failed to link the recovered contraband with the accused person. Therefore, the benefit of the said doubt must go to the accused," the court said in its judgment dated February 16.
According to the prosecution, the NCB's Chennai Zonal Unit received secret information on September 16, 2016, that Da Silva had arrived from Rio de Janeiro carrying around 4 kg of cocaine and was staying at a guest house at Pallavaram in the city.
The NCB claimed that a raid at KEK Accommodation led to the recovery of 3.690 kg of cocaine from notebooks and children's books found inside a trolley bag in the accused's room.
The Central Revenues Control Laboratory (CRCL), New Delhi, later confirmed that the samples contained cocaine hydrochloride.
The accused denied the allegations, claiming that the contraband was planted later after his checked-in baggage failed to arrive at the Chennai airport.
The defence contended non-compliance with mandatory provisions of sections 42 (empowering specific central and state government officers to enter, search, seize, and arrest without a warrant) and 52A (disposal of seized narcotic drugs) of the NDPS Act, and standing orders on search and sampling.
The prosecution relied on the "clinching and unimpeachable testimony" of its witnesses.
After examining the evidence, the court held that the prosecution failed to dispel reasonable doubt on procedural compliance and search and seizure.
"When the entire evidence of the present case is cumulatively read and appreciated in the background of the settled principle of law and in the light of the evidence adduced by the prosecution, this court is of the view that the evidence brought on record is not worthy of acceptance and there is a shadow of doubt cast upon it," the court said.
"The testimonies of the prosecution witnesses are not of sterling character, and the lapses on the part of the investigating officer in conducting a faulty investigation, the lapses on the part of the prosecution in not proving the necessary links of their case, led to only one irresistible conclusion that the prosecution's story is not worthy of inspiring any confidence. Hence, it strikes at the very root of the prosecution's story, rendering it to be improbable and unbelievable," it added.
No application was moved under Section 52A of the NDPS Act.
"The case property was not produced before the magistrate, and the sampling process was not carried out there... Therefore, there is no certification from the concerned magistrate regarding the alleged sampling done at the spot," the court said, also noting the absence of photographic or videographic evidence during seizure.
Silva, who is not conversant in English and Hindi, arrived with an official translator with him.
Noting that independent seizure witnesses from the raid team and the translator were not examined, the court said, "The non-examination of the independent seizure witnesses and the translator had struck a fatal blow on the case of the NCB, since the testimony of Investigating Officer M Ramu is far from being of sterling character. No corroboration to his testimony was brought on record." The assistant chemical examiner who prepared the CRCL report was also not examined.
"The entire edifice of the prosecution's case was further dismantled, since the person who had conducted the forensic examination was not examined before this court and the report was merely sought to be proved through the testimony of his supervisory officer," the court said.
"The non-examination of the person, who allegedly conducted the forensic examination, has rendered the CRCL report inconsequential, and it vanishes from the ken of evidence, and can not come to the aid of the case of the NCB," it added.
The prosecution also failed to establish that Silva was on the said flight, with documents of "proof" not certified under Section 65B of the Indian Evidence Act, with their issuer not examined.
The court said, "The statutory presumption as enshrined u/s 35 (presumption of culpable mental state) and 54 (presumption from possession of illicit articles) of the Act required the prosecution to prove the foundational facts of conscious possession, prior to the presumption being kicked in, which the prosecution has miserably failed to do in the present case." The case was instituted in Chennai in 2017 and later transferred to Delhi pursuant to Supreme Court orders in July 2020. PTI MDB ARI
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