RAMA MURTY TIWARI Vs. STATE

JUDGEMENT

(1.) BY the present appeal the Appellant challenges the impugned judgment dated 5th May, 1999 convicting the Appellant for offence punishable under Section 20(b) (ii) of the Narcotics Drugs and Psychotropic Substances, 1985 (in short the 'Act') and the order on sentence dated 12th May, 1999 awarding Rigorous Imprisonment for a period of ten years and a fine of '1,00,000/- and in default of payment of fine, to further undergo Rigorous Imprisonment for six months.

(2.) THE prosecution case in brief is that on a secret information being received that a person aged about 40 years residing at Chandrawal, Sabzi Mandi was likely to supply a huge quantity of narcotics drug to certain unknown customer at around 5:30 P.M. on 13th September, 1996 near Safdarjung Madarsa Bus Stand, the said information was reduced into writing and forwarded to the senior officer through a raiding party comprising of PW10 Sh. J.R. Koty, PW12 Sh. R.K. Sinha, PW11 Sh. B.S. Meena and other Constables was constituted. Two independent public witnesses namely Shri S.S. Narula PW6 and Shri R.K. Agarwal PW7 were joined. At about 5.00 P.M. on pointing out of the informer, the Appellant when he came to bus stop at about 5:00 P.M. carrying a small cotton bag in his right hand was apprehended by the team. PW10 asked him what he was carrying to which he replied that he was carrying charas weighing one and a half k.g. On this, PW10 informed the accused that he was a Gazetted officer of the CBI and was competent to carry out the search. He also informed that the accused had the option of having his search conducted either before a Gazetted officer or a Magistrate for which a written notice Ex. PW6/A was given to the Appellant. THE Appellant consented to his search being conducted by PW10. On the search being conducted, from the cotton bag one white polythene bag was found which contained three transparent poly bags and these three poly bags contained 59 pieces of sticks which were in the form of dark brown blackish substance which when weighed with the field testing kit was found to be 8.14 kgs of charas. Out of this charas two representative samples of 25 gms each were drawn and kept into two poly bags and thereafter in two separate yellow coloured envelopes. THEse were sealed with the seal of CBI being CBI/02/JAY. THE samples were given marking A-1. THE balance contraband was also sealed and three copies of the test memos were duly filled in and prepared at the spot and the facsimile of the seal was appended on them. THE accused was arrested vide arrest Memo Ex.PW6/D and after completion of investigation, a charge-sheet was filed along with the report of the chemical analyst Ex. PW1/C which opined that the samples tested positive for charas.

(3.) PER contra, learned counsel for the Respondent contends that there is no violation of Section 55 of the Act. The case property was deposited with PW4 SI Neelam Singh, who was the Malkhana-in-charge on 13th September, 1996 and had received this property from PW10 J R Koty, DSP CBI. Also PW8 ASI Ram Kumar who was working as the temporary Malkhana-in-charge on 16th September, 1996 gave the case property to PW5 Sudarshan Pal who delivered it at the CRCL and deposited with PW9 B.B. Dev on the same date. As per the forwarding letter dated 16th September, 1996 accompanying the samples Ex. PW1/A the packet mark A1 was enclosed in a yellow bag mark A1 (+) along with two test memos. On a collective reading of the statements of PW4, PW5, PW8, PW9 and PW6, it is proved beyond reasonable doubt that the samples were kept in sealed condition and were received by CRCL in the same sealed condition, there being no likelihood of tampering. PW4 in her statement deposed that the case property was deposited in the Malkhana on the 13th September, 1996 at about 10:40 p.m. at night and there being insufficient light at that time, she had inadvertently noted the colour of the pullanda as cream and not white. The contention of the learned counsel for the Appellant that PW9 B.B. Dev has not deposed in his statement that he had received in his office an envelope duly sealed and marked as A1(+) in test memo along with sample surety is a minor inconsistency and this fact has been proved by the testimony of PW1 Dr. Y.K. Singh Rathor, the chemical examiner who has stated that on 16th September, 1996 Constable Sudarshan Pal had deposited one envelope duly sealed with Mark A1(+) along with two test memos and forwarding letter of Sh. Vivek Joshi dated 16th September, 1996. Furthermore, the decision of the Honourable Supreme Court in Valsala (supra) is not applicable as the facts were entirely different in the said case and in that case there was no evidence as to what was seized had been sealed and that the same sealed property was properly stored.