Case Note & Summary
The appellant, Roque @ Rocky Fernandes, was convicted by the Additional Sessions Judge, North Goa, Mapusa in Special Criminal Case No.22/2015 for offences under Section 8(c) and Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced to ten years rigorous imprisonment and a fine of ₹1,00,000. The case arose from an incident on 20.12.2014 when the Anti Narcotic Cell (ANC) raided a kiosk at Starco Junction, Anjuna, and allegedly recovered 24 pieces of paper weighing 0.25 grams suspected to contain LSD, a commercial quantity. The appellant challenged the conviction on multiple grounds including non-compliance of Sections 50, 52-A and 55 of the NDPS Act, delay in conducting the raid, manipulation of the search warrant, stereotype statements of witnesses, failure to prove the chain of custody, and unreliability of the chemical analyser report. The High Court of Bombay at Goa, after hearing arguments, found that the prosecution failed to comply with the mandatory requirement of Section 50 of the NDPS Act as there was no evidence that the accused was informed of his right to be searched before a gazetted officer or magistrate. Additionally, the court noted significant discrepancies in the chain of custody, including lack of proper sealing and labeling of the seized substance, and the destruction of the field testing kit without proper documentation. The chemical analyser's report was also found unreliable due to lack of clarity on the sample tested. Consequently, the court allowed the appeal, set aside the conviction and sentence, and acquitted the appellant, giving him the benefit of doubt.
Headnote
A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Compliance - Search of Person - The court examined whether the mandatory requirement of informing the accused of his right to be searched before a gazetted officer or magistrate was complied with. The prosecution failed to prove that the accused was informed of such right, leading to a fatal flaw in the case. (Paras 10-15) B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 52-A and 55 - Chain of Custody - Discrepancies in Seized Property - The court found that the prosecution did not establish a clear link between the substance seized and the sample sent to the chemical analyser. There was no evidence of proper sealing, labeling, or safe custody, raising serious doubts about tampering. (Paras 16-22) C) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 22(c) - Commercial Quantity - LSD - The court held that the prosecution failed to prove that the seized substance was LSD beyond reasonable doubt due to unreliable chemical analyser report and lack of proper sampling procedure. (Paras 23-27)
Issue of Consideration
Whether the conviction under Section 22(c) of the NDPS Act is sustainable in light of alleged non-compliance of Sections 50, 52-A and 55, and doubts regarding the chain of custody and reliability of the chemical analyser report.
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellant acquitted of all charges. Bail bonds cancelled.
Law Points
- Non-compliance of Section 50 of NDPS Act
- Chain of custody
- Delay in raid
- Reliability of chemical analyser report
- Field testing kit destruction
- Manipulation of search warrant
- Stereotype statements of witnesses
- Tampering possibility
