Mumbai: Observing that in the absence of statutory safeguards, the possibility of tampering cannot be completely ruled out, a special court on Thursday acquitted a 37-year-old driver accused of possessing a commercial quantity of mephedrone. The special Narcotic Drugs and Psychotropic Substances (NDPS) Act court noted serious procedural lapses by the Anti-Narcotic Cell (ANC) and a failure to establish an unbroken chain of custody for the seized drugs. Police arrested Danish Shaikh in 2022 after a cop on patrol duty allegedly noticed Shaikh “acting suspiciously” and found 215 gm of the psychotropic substance inside a white nylon bag he was carrying. The judge, however, noted contradictions in the evidence. “The contradictions regarding search procedure, sealing, inventory and chain of custody are material in nature and go to the root of the prosecution case. The possibility of tampering with muddemal (physical evidence) and false implication of the accused cannot be completely ruled out. The evidence adduced by the prosecution does not inspire such confidence as would warrant conviction under the stringent provisions of the NDPS Act,” the judge said. Shaikh has been out on bail.Shaikh was arrested on Oct 20, 2022, near the Bandra Court. It was claimed that he confessed to possessing the substance for commercial sale.Defence advocate Dilip Mishra argued that the prosecution entirely failed to prove the guilt of the accused. Mishra submitted that the police falsely implicated the accused by picking him up from a residence earlier that day. The defence submitted that the police failed to collect mobile tower locations or call detail records that could have proved the actual location of the accused at the time of the alleged incident.Pointing to the police failure to produce the call detail records, the judge said, “In a case under the NDPS Act involving stringent punishment … such electronic evidence assumes considerable importance, particularly when the defence has raised a plea of false implication and illegal detention before alleged seizure. The unexplained failure of the investigating agency to collect and produce tower location data, therefore, further weakens the prosecution’s case and adds to the doubt regarding the fairness and transparency of the investigation.“Noting the importance of strict compliance under the NDPS Act, the judge said, “The safeguards relating to search, seizure, sampling, sealing and custody of muddemal are not empty procedural formalities, but substantive protections intended to ensure fairness, transparency and credibility in investigation and to rule out the possibility of false implication, fabrication or tampering with seized contraband.”Further referring to the failure of the prosecution to follow mandatory sampling safeguards, the court observed, “In the absence of strict compliance with statutory safeguards governing disposal and sampling of seized narcotic substances, the possibility of tampering or substitution cannot be completely ruled out.” The judge also noted that the chemical analyser admitted the sample envelope was not sealed on both sides. “These inconsistencies are not minor in nature because the sealing procedure is fundamental to the preservation of the sanctity of seized contraband,” the judge said.
