Witness Signature on Arrest Memo for detention under NDPS Act not just empty formality, Cal HC [Read Order]

The Calcutta High Court recently reiterated that while detaining a person under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, the investigative authorities should ensure that there are no discrepancies in both the seizure of the substance as well as in the arrest of the accused..For the purpose of bail, discrepancies in the arrest memo by itself is sufficient to discharge the onus on the accused to show that there are reasonable grounds to believe that he is not guilty of the alleged offence..The accused in this case was arrested by the police for allegedly possessing cartons of codeine above the commercial limit. Following his arrest, he was detained in custody for 88 days, and his wife filed a bail application before the High Court..It was the case of the accused that the arrest was politically motivated, given that he was due to contest in the Panchayat Elections shortly before his arrest..The police contended that the seizure of the narcotic substance was validly carried out in the presence of witnesses, as required by law..However, the arrest memo did not contain any witness signatures, contrary to established law. As noted by the Bench of Justices Ravi Krishan Kapur and Joymalya Bagchi,.“In fact, in the arrest memo under the column titled ‘Relation or respectable member of the locality’ it is recorded ‘no one turned up’ It is inexplicable when the aforesaid local 5 people agreed to witness the search and recovery of narcotic substance from the petitioner, why they declined to sign on the arrest memo.”.The Court went on to observe that a signature on the arrest memo is not just an empty formality. Rather, the absence of such signature would lend credence to the plea of the accused that it is a case of wrongful detention..“Signature on the arrest memo of a relation or respectable member of the locality is a requirement which stems from the mandate of the Apex Court in the case of DK Basu Vs State of West Bengal….It is not an empty formality and the presence of such signature gives a stamp of authenticity to the lawful apprehension of the accused at the place and time as stated therein. .Absence of signature in the arrest memo of a respectable member of the locality particularly when it is alleged that apprehension and recovery from the petitioner was at a public place in presence of independent witnesses gives rise to reasonable grounds that the arrest of the petitioner may not have occurred in the manner as alleged by the prosecution leading credence to the petitioner’s plea of prior arrest and wrongful detention.”.Generally speaking, in NDPS matters, it is on the accused to discharge the onus/liability to prove his case. As far as bail is concerned, the bail applicant is required to satisfy two criteria under Section 37 of the NDPS Act, i.e..That there are reasonable grounds to believe that the accused is not guilty of the alleged offence andThat he is not likely to commit any offence in future. No doubt, a heavy duty is cast on the petitioner to discharge such onus..In this background the Court noted,.The onus on the accused is discharged if the material on record indicates that the allegations against the accused are patently absurd and inherently improbable.If the accused demonstrates with reasonable certainty that he is not guilty of the alleged offence..Applying these standards, the Court noted that there were gross inconsistencies in the material relied upon by the investigative authorities in this case, which were not explained adequately by the prosecution..“Having considered the materials on record particularly the seizure list, labels, memo of arrest in the instant case, we find gross inconsistencies and/or contradictions in the said documents… .… In spite of repeated queries, Investigating Officer was unable to explain these glaring lacunae in the prosecution case which go to its root and provide reasonable grounds to believe that the same may be false and fabricated.”.Therefore, the Court allowed the bail plea, observing that there were reasonable grounds to believe that the accused was illegally detained..“Hence, we are inclined to hold that the petitioner has been able to rebut the statutory restrictions for grant of bail under Section 37 of the NDPS Act. In the light of the aforesaid findings and the period of detention suffered by the petitioner, we are inclined to grant bail to him.”.However, the Court clarified that the grant of bail would not affect the merits of the case in subsequent stages. Bail was granted subject to furnishing a bond of Rs. 50, 000. The accused should also appear before the concerned authorities whenever required..Read the order: