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2004 DIGILAW 993 (RAJ)

Satt Lal v. Union of India

2004-07-19

SHIV KUMAR SHARMA

body2004
JUDGMENT 1. - The appellant seeks to quash the judgment dated October 20, 2001 of the learned Special Judge, NDPS Cases Bhilwara rendered in Sessions Case No. 12/2000, whereby the appellant was convicted and sentenced under section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') to undergo rigorous imprisonment for ten years and fine of Rs one lac in default to further undergo simple imprisonment for six months. 2. The brief facts of the case are that the Superintendent, Narcotic Bureau, Chittorgarh alongwith other officers conducted a nakabandi at Naka No. 2 of Chittorgarh on March 11, 2000. A number of pick-up jeeps of to Mahendra Company were checked. One of the jeep bearing No. MH 15T RH-622 driven by Prakash was checked. One person was sitting in jeep for whom the driver stated that he took lift for Bhilwara. At that time that person attempted to fled away but was caught by the Driver. On being enquired he disclosed his name as Sattu Lal and notice under Section 50 of the NDPS Act was given to him and the search was conducted in presence of motbirs. Opium weighing 2.8 Kg. was found, out of which sample of 25 gm was taken. Necessary memos of recovery, arrest etc. were drawn and after usual investigation charge sheet was filed. Charge under Section 8/18 NDPS Act was framed against the appellant, who denied the charge and claimed trial. The prosecution in support of its case examined as many as seven witnesses. The appellant in his explanation under section 313 Cr.P.C. claimed innocence and stated that he was arrested from the private bus stand Bhilwara and was beaten up. 3. The main contention advanced by learned counsel for the appellant is that the prosecution has failed to prove that the articles. since the time they seized and till they reached to FSL, remained intact and they were not tempered with. Reliance is placed on Tara Singh v. State & Ors., 1996 RCD 62 . Per contra, learned Public Prosecutor supported the impugned judgment and canvassed that this question was dealt with in detail by the learned Trial Judge and it is of no help to the appellant. 4. I have pondered over the rival submissions and scanned the material on record. 5. Per contra, learned Public Prosecutor supported the impugned judgment and canvassed that this question was dealt with in detail by the learned Trial Judge and it is of no help to the appellant. 4. I have pondered over the rival submissions and scanned the material on record. 5. A perusal of the recovery memo (Ex.P2) would demonstrates that although two samples each containing opium 25 gms. were drawn and sealed, mark 'ORIGINAL' was not put on the said samples. Independent Memo (Ex.P3) that incorporated three samples of seal got drawn but all the three samples of seal are illegible and one can not see mark 'ORIGINAL' on the said three samples of seal. One sample of 25gms. Opium duly sealed and marked 'ORIGINAL' was forwarded for analysis to Neemuch by the Superintendent Central Narcotic Bureau vide letter Ex.P10. Amer Chand took the sample to Neemuch and report of Chemical Examination (Ex.P17) goes to show that one sealed paper packet marked as 'ORIGINAL' was analysed. Mahaveer Prasad Jain (PW4), who had drawn recovery memo Ex.P2) and memo of sample of seal (Ex.P3) did not depose that he put mark 'ORIGINAL' on recovery memo (Ex.P2). Even in regard to memo (Ex.P3) Mahavir Prasad Jain deposed that the seal imprinted on (Ex.P3) were not readable and legible. Learned trial judge lightly brushed aside the argument advanced in this regard and observed that it was not necessary to put the mark of sample of seal in the recovery memo. The finding arrived at by the learned trial judge is erroneous. 6. The prosecution thus failed to establish beyond reasonable doubt that the samples that were sent to FSL for the purpose of analysis were the same samples that were drawn vide Ex.P2 out of the recovered articles from the possession of the appellant. Ratio indicated in Tara Singh v. State & Ors., 1996 RCD 62 is squarely applicable to the facts of the instant case. The act of Seizure Officer in imprinting the sample if seal on recovery memo to (Ex.P2) as illegible impression of seal on the memo Ex.P3 was a deliberate attempt to flout the safeguard provided under the NDPS Act to the accused. In view of this the charge under section 8/18 of the NDPS Act is not established against the appellant beyond reasonable doubt. 7. In view of this the charge under section 8/18 of the NDPS Act is not established against the appellant beyond reasonable doubt. 7. For these reasons I allow the appeal and set aside the impugned judgment dated October 20, 2001 of learned Special Judge, NDPS Cases, Bhilwara. I acquit the appellant of the charge under Section 8/18 of NDPS Act. The appellant, who is in jail, shall be set at liberty forthwith, if not required to be detained in any other case.Appeal Allowed. *******