STEPHEN Vs. STATE

JUDGEMENT

(1.) By these appeals, the appellants challenge the common impugned judgment dtd. 18/11/2015 convicting the appellants for offence punishable under Sec. 23(c) NDPS Act read with Ss. 28 and 29 of the NDPS Act. Appellant Ude Stanely Chidi was also convicted for offence punishable under Sec. 21(c) NDPS Act for being found in possession of 255 grams of heroin at his residence. Vide the order on sentence dtd. 21/11/2015 the appellants were awarded rigorous imprisonment for 10 years and a fine of ?1 lakh for offence punishable under Sec. 23 read with Ss. 28 and 29 NDPS Act and Ude Stanely Chidi was also awarded rigorous imprisonment for 10 years and fine of ?1 lakh for offence punishable under Sec. 21(c) NDPS Act and both the sentences awarded to Ude Stanely Chidi were to run concurrently.

(2.) Learned counsel for Ude Stanely Chidi states that the appellant has been wrongly convicted. Despite the fact that the premises of the petitioner was searched pursuant to the information, no videography or photography of the spot or even the residence was conducted to lend credence to the version of the investigating agency. Rajesh Kumar, the investigating officer who appeared as PW-9 clearly deposed that he did not take photographs of the premises of the appellant or of co-accused Aisha and further no photographs of recovery and search proceedings were also taken. The investigating agency failed to even prepare the site plan of the spot where raids were allegedly carried out. Reliance is placed on the decisions of this Court reported as (2014) 146 DRJ 629 Ram Prakash Vs. State and (2015) 219 DLT 271 Mohd. Masoom Vs. State of NCT of Delhi. The samples were drawn in breach of Sec. 52A of the NDPS Act and contrary to the law laid down by the Hon'ble Supreme Court in the decision reported as (2016) 3 SCC 379 Union of India Vs. Mohanlal and Anr. The evidence of the independent witnesses Anil Kumar and Ranbir Singh who were examined as PW-5 and PW-6 respectively is not worthy of credit. There are material contradictions in the testimony of the two independent witnesses. The independent witnesses have also contradicted the evidence of official witnesses in respect of time when the raid was conducted.

(3.) Learned counsel for Ude Stanely Chidi further contends that the seal after sealing of the pullandas was not handed-over to independent witnesses. Reliance is placed on the decision reported as (1993) 49 DLT 193 Safiullah Vs. State and (2007) SCC Online P&H 573 Gurjant Singh Vs. State of Punjab. Thus, integrity of the chain of custody of the contraband is doubtful and the witnesses have not deposed that while the case property remained in their possession the same was not tampered with. Log book of the vehicle used by the raiding team was not produced to corroborate the version of the witnesses. The witnesses have contradicted each other in relation to the colour of the contraband allegedly recovered. In view of the law laid down by the Hon'ble Supreme Court reported as (2021) 4 SCC 1 Tofan Singh Vs. State of Tamil Nadu the confessional statements recorded under Sec. 67 of the NDPS Act cannot be used as an incriminating evidence to convict the appellants. Since the quantity of heroin recovered from the house of Ude Stanely Chidi though claimed to be 255 grams is discrepant, hence he cannot be convicted for possessing narcotics drugs in commercial quantity. There is over-writing in the panchnama where quantity recovered is noted. Further, as per the independent witness, the recovered drug was weighed along with the packets and the weight of the packet being approximately 5.5 grams the appellant cannot be convicted for possessing commercial quantity.