Procedural Lapses in Search, Seizure, Sampling and Panchanama Lead to Acquittal in 4.3 Kg Cocaine NDPS Case

A Special NDPS Court at Greater Bombay has acquitted two Peruvian nationals, Michael Enrique Chincha Dulonto and Maria Del Pilar Barr Avila accused of smuggling 4.3 kilograms of cocaine into India through Mumbai’s Chhatrapati Shivaji Maharaj International Airport. The bench of S.M. Bukke, Additional Sessions Judge and Special Judge found that the NCB officers "blatantly flouted" mandatory guidelines for handling evidence. The officer mixed the powder from two different bags into one large bag before weighing them separately or drawing individual samples. Because the contents were mixed, it became impossible to prove how much contraband was recovered from each specific accused. Crucially, the NCB Superintendent (PW-2) and the Seizing Officer (PW-3) admitted during cross-examination that they were not even aware of Standing Orders 1/88 and 1/89, which govern these procedures. Failure to Comply with Section 52A of the NDPS Act The court noted a total lack of magisterial oversight, which is a mandatory requirement for the validity of primary evidence. Samples were drawn on the spot by the NCB team alone. They were never produced before a Magistrate for inventory certification as required by law. The contraband was seized in 2018 but was produced before the court for the first time in 2023—five years later. The NCB received specific intelligence on April 10, 2018, that two Peruvian nationals would arrive in Mumbai on Ethiopian Airlines Flight ET-610 carrying contraband narcotic drugs in their checked-in baggage. Acting on this information, an NCB team laid surveillance at the international arrivals area of the airport in the early hours of April 11, 2018. The accused were intercepted after clearing customs, and upon search of their trolley bags, the officers allegedly recovered 4.3 kg of a white powdery substance, which later tested positive for cocaine. Samples were drawn on the spot, sealed, and sent for chemical analysis. Both accused were arrested, statements were recorded under Section 67 of the NDPS Act, and a charge sheet was filed in October 2018. The defence strongly challenged the prosecution case, arguing that there were serious contradictions in the evidence of NCB officers and independent panch witnesses. It was contended that mandatory safeguards under the NDPS Act, particularly with regard to search, seizure, and documentation, were not strictly followed. The defence also questioned the credibility of the alleged seizure, the manner of drawing samples, and the inconsistencies regarding the place and timing of the search and panchanama. After an exhaustive analysis of the evidence, the Special Court held that the prosecution failed to prove the charges beyond reasonable doubt. While the Court accepted that the NCB had received prior information and broadly complied with the requirement of reducing such information into writing, it found multiple infirmities in the prosecution case. The Court noted glaring contradictions among prosecution witnesses regarding the exact place of interception—whether it was at the conveyor belt, customs clearance area, or immigration counter—as well as discrepancies in the timing of the raid and preparation of the panchanama. These inconsistencies, the Court observed, cast serious doubt on the prosecution’s version of events. A critical factor that weighed with the Court was the improper and inconsistent handling of search and seizure procedures. The panchanama did not clearly specify the spot where samples were drawn and weighed. The Court also noted that the contents of Section 50 of the NDPS Act were neither properly recorded nor convincingly proved, particularly in relation to personal searches, thereby weakening the prosecution’s case. Moreover, the independent panch witnesses failed to lend reliable corroboration to the NCB’s version, with one witness turning hostile and others giving versions that conflicted with those of the seizing officers. The Court answered all key points for determination against the prosecution and acquitted both accused of all charges. The Court held that the prosecution had failed to establish illegal possession, import, or conspiracy beyond reasonable doubt, despite the alleged recovery of a commercial quantity of cocaine. Click Here To Read Order Read More: Income Tax Dept. Can’t Recover TDS Shortfall from Employee When Employer Failed to Deposit Deducted Tax: Gujarat HC

Procedural Lapses in Search, Seizure, Sampling and Panchanama Lead to Acquittal in 4.3 Kg Cocaine NDPS Case

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