After 22 years, the Bombay High Court set aside the conviction of Jaiswal Gopal Gupta for illegal possession of a small quantity of morphine. The court had to acquit Gupta because the police failed to search him in the presence of a gazetted officer or magistrate and store the confiscated drugs correctly.
On November 2, 1990, the police caught Gupta, then 28, while they were on patrol in Bandra. Gupta, who was accompanied by his wife, was found in ‘suspicious circumstances’. Thirty two small packets, each containing 5 mg of diacetylmorphine, were recovered from Gupta’s pant pocket, and Rs 6,405 in cash from his wife. The two were arrested.
After a trial, in which both pleaded innocence, the special Narcotics Drugs and Psychotropic Substances (NDPS) court convicted Gupta under Section 27 (possession of small quantity for personal consumption), while his wife was acquitted. In appeal, Justice RC Chavan observed the disobedience of section 50 of the NDPS Act, which enjoin that a person must be searched before a magistrate or gazetted officer. “Failure to comply with Section 50… vitiates the prosecution case,” the court further observed.
While acquitting the accused of a year’s sentence, the court observed, “Since the evidence was far too deficient to show that the sample packets were kept in proper custody from the date and time of seizure till they reached the laboratory, on this count alone the prosecution case ought to fail.” During cross-examination, the police officer, who registered the case against Gupta, admitted that there was nothing in the mudemal register to show that the contraband was handed over on November 3 and then requisitioned to the FSL.