Unexplained delay in producing seized contraband substances before Court can damage prosecution's case against accused: Kerala HC

The Kerala High Court on Monday exonerated a person convicted of being in possession of drugs on account of an unexplained delay in producing the seized substances before the Court and lack of evidence about its whereabouts and conditions in the interim (Faijas v. State of Kerala)..The Court was hearing an appeal by a person convicted and sentenced for possession of Buprenorphine and Diazepam, substances categorised as psychotropic under the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act). .The person was discovered to be in possession of the contraband after a Sub-Inspector acted on information received concerning the person’s possession of the substances, along with his location..The person was searched after he was apprehended by the Sub-Inspector and asked whether he would rather be searched in the presence of a Magistrate or a “gazetted officer”. .On his consenting to a search by the Inspector, the substances were found in a plastic cover in his possession. Samples of the two substances along with their remainder were wrapped and sealed in brown paper..The accused-appellant, who was initially unrepresented in Court, was assigned a lawyer. His conviction by the lower court was challenged on three counts,Lack of compliance with the procedure under Section 42 of the Act;Failure to comply with Section 50 of the Act;Delay in producing the substances seized before the Court..The Court through Justice R Narayana Pisharadi rejected the first two contentions as being without merit, as statutory processes were complied with. Sections 42 and 50 pertain to the procedure for a search, seizure and arrest under the Act and requisites for the conduct of a search upon a person..However, the Court accepted the third contention submitted by the Counsel for the Petitioner, that is, the unexplained delay in producing the substances before Court. .The Court noted that around three days had elapsed after the seizure of the substances before it was produced in Court..The Sub-Inspector claimed that the Magistrate had placed his seal on the seized goods two days after the seizure. In the intervening period they would have been in the police station and in the custody of the station writer, he submitted. .The Circle Inspector who investigated the offence on the date of occurrence submitted that the seized contraband was in the Sub-Inspector’s possession..The Court noted discrepancies in the testimony, given the following factors:The Magistrate’s seal on the seized items was observed to be stamped with a date three days following the seizureThe Buprenorphine sample and the remainder of the seized substance was found un-sealed, though samples and the remainder of the other substance were sealed.The lack of evidence about where the substances were stored before their production in the Magistrate’s Court..Justice Pisharadi held:."It is not explained what prevented the detecting officer or the investigating officer to produce the seized articles in the court immediately after the seizure. In view of the unexplained delay in producing the seized articles before the court, tampering with such articles at the police station cannot be ruled out.".Citing the Supreme Court's judgment in a 2018 case, State of U.P v. Hansraj @ Hansu, Justice Pisharadi ruled that evidence was necessary to prove how and in what conditions the contraband was stored in the police station, when it was stored before its production in Court..Further, the “absence of evidence” regarding the nature of the seal used during the seizure of the contraband raised doubts about the prosecution’s account of the facts leading up to the arrest of the accused, the Court found..In light of these reasons, the Court gave the benefit of the doubt to the accused and acquitted him..Advocate MT Balan represented the accused and Senior Public Prosecutor Santhosh Peter appeared for the State..Read the Judgment here: