Mumbai: A special NDPS court recently acquitted two men, including a 75-year-old Jammu and Kashmir resident, in a 2017 case involving the alleged seizure of over 20 kg of charas. Both accused, Haji Hakim and Irfan Qureshi, had spent five years in jail before being granted bail in 2022. The court ruled that the prosecution failed to prove the charges beyond reasonable doubt, citing significant procedural lapses regarding the search of the accused and the methodology used to collect drug samples for forensic analysis. The duo were arrested in July 2017 by the Anti-Narcotic Cell (ANC) near Foras Road following a tip-off. While the prosecution claimed to have recovered 15.6 kg of charas from Hakim and 5.2 kg from Qureshi, the judge found substance in defence lawyer Anil Lala’s submissions that the mandatory safeguards under the NDPS Act were not strictly followed. The judge noted that while the law requires an accused to be informed of their right to be searched before a magistrate or a gazetted officer, the evidence in this case was “not convincing.“The court pointed to discrepancies in how the accused were apprised of these rights. Though the police produced letters signed by the duo, the judge observed that the replies were not in the handwriting of the accused and appeared identical. Further, the investigating officer admitted that the appraisal might have occurred during the preparation of the panchnama rather than before the actual search. Regarding these procedural failures, the judge held, “If this statement... is accepted to be true, then admittedly the appraisal of right under section 50 was not before the search was conducted. The evidence of prosecution on the point of appraisal about right of accused under section 50 of NDPS Act is not convincing.”Another blow to the prosecution’s case was the failure to follow Section 52-A of the NDPS Act, which mandates that samples be drawn in the presence of a magistrate to serve as primary evidence. The court found that the police had instead collected samples by “scratching” the seized charas rolls themselves. “Admittedly, the procedure under section 52-A of NDPS Act is not followed in the present case. It is an admitted fact on record that the sample from the seized substance were not drawn by the police in the presence of the magistrate, therefore, the samples drawn would not be a valid piece of primary evidence in the present trial,” the judge said. The judge further questioned the representative nature of the samples, noting that the investigating team did not weigh each charas roll separately or collect individual samples from every piece. As the prosecution failed to establish that the samples sent for chemical analysis accurately represented the bulk of the seized material, the judge found the evidence insufficient for a conviction. “The prosecution has failed to establish compliance under section 52-A of the NDPS Act. The prosecution has failed to prove charge against accused beyond reasonable doubt,” the judge said.
