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2014 DIGILAW 1254 (PAT)

Laxmi Sah v. Union of India

2014-12-18

GOPAL PRASAD

body2014
GOPAL PRASAD, J.:–Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted under Section 22 (C) of the Narcotic Drugs and Psychotropic Substances Act (for short “the Act’) and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.1,00,000/- and on non-payment of fine to undergo rigorous imprisonment for one year. 3. Prosecution case as alleged in the First Information Report by the Assistant Commandant is that he along with his associates was on duty at pillar no. 430/72 and at about 22 hours, he found some persons entering into the Indian territory from the Nepal border who were challenged by the Jawan of the Naka party and then all started fleeing away throwing their bundles. However, out of them one person was chased and caught and from his possession one bundle of Nepali Ganja was recovered and 14 bundles were found thrown around and it is alleged that 15 bags of Ganja including the Ganja recovered from the person of the appellant was weighed together and found to be three quintals for which a seizure list was prepared. 4. The defance of the accused is that while he was watering his land on his field he was caught by the police and has falsely been implicated. 5. The police after investigation submitted charge-sheet on which cognizance was taken and case was committed to the Court of Sessions and after framing of charge, trial proceeded. 6. During trial, six witnesses have been examined on behalf of the prosecution including the informant P.W. 3. 7. P.W. 3 in his evidence has stated that he caught hold of the appellant with a bundle of Ganja and he also disclosed that the appellant was accompanied with 14 other persons carrying 15 bundles of Ganja which have been recovered and weighed as 300 Kg. Ganja. The other witnesses are mostly constables who supported the prosecution case about the seizure. The evidence of P.Ws. 1, 2, 4, 5 and 6 is similar to the effect that several people were entering into Indian Territory from Nepal and when they challenged them all fled away throwing the bundles and one person was arrested having Ganja who disclosed his name as Laxmi Sah. However, the FSL report has been marked as Ext. 3 on mere prayer of the prosecution without being proved even formally. However, the FSL report has been marked as Ext. 3 on mere prayer of the prosecution without being proved even formally. However, the trial court on the evidence of the witnesses and the FSL report convicted the appellant as mentioned above. 8. Learned counsel for the appellant, however, contended that neither the Investigating Officer nor the Officer-in-Charge of the Police Station has been examined where the case was registered. There is no evidence where the seized articles were kept. There is no evidence to the effect that who took out the sample and who sent the sample to the FSL. There is no evidence that from which bundle sample was taken and whether the sample was taken from each bundle. There is no evidence regarding compliance of Sections 52A, 55 and 57 of the Act and hence, submits that the judgment of conviction and order of sentence is not sustainable. It has further been contended that the articles seized is said to be the Ganja but the conviction has not been recorded under Section 20(b)(ii)(C) of the Act but under 20 (C) of the Act, though the report has been received and proved that the article seized was Ganja. 9. It is apparent that the First Information Report has been lodged on the statement of the Assistant Commandant who is P.W. 3 and the witnesses have only deposed to the fact regarding the apprehension of the appellant with a bundle and other 14 having fled away throwing 14 bundles of Ganja. There is no mention about specification of the bundles seized nor it has separately been weighed nor separately marked nor the bundles found with the appellant was specified nor there is any mention where the said bundles were kept as also whether they were sealed. There is no evidence that when the specimen samples were taken and who took the sample and whether the sample of each of the bundles was taken. There is no evidence that the bundles which were recovered were seized from the possession of the appellant or whether the sample was taken from it separately. There is no mention at all that who took the sample and who sent it. There is no evidence that any Magistrate was deployed for compliance of Section 52A of the Act. There is no evidence that the bundles which were recovered were seized from the possession of the appellant or whether the sample was taken from it separately. There is no mention at all that who took the sample and who sent it. There is no evidence that any Magistrate was deployed for compliance of Section 52A of the Act. The FSL report has also not been proved in accordance with law and the matter has been brought to the notice of the trial court but the trial court did not consider the safeguard provided to the appellant. 10. However, having regard to the fact that there is neither compliance of Sections 52A, 55 and 57 of the Act, there is no mention that who took the sample and in what amount, there is no mention that where the articles kept after the seizure and neither the certificate of a Magistrate about these articles nor the articles have been produced in court and hence, in that view of the matter the judgment of conviction and order of sentence recorded by the lower court is not sustainable and hence, is hereby set aside. The appeal is allowed. The appellant, who is in custody, be set at liberty forthwith, if not required to be detained in any other case. ?