HARIKALA Vs. STATE

JUDGEMENT

(1.) In the present appeal, the four appellants herein, namely, Harikala, Ramkali, Dhan Sheri and Seeta challenge their conviction for offence punishable under Sec. 20(b)(ii)(C) NDPS Act vide the impugned judgment dtd. 31/3/2018 and the order on sentence dtd. 3/4/2018 directing them to undergo rigorous imprisonment for a period of 10 years and to deposit a fine of Rs.1.00 lakh each in default whereof to undergo further six months simple imprisonment.

(2.) The four appellants and the two other co-accused Man Kumari and Seeta W/o Ramesh were also charged for offence punishable under Sec. 29 NDPS Act for which they have all been acquitted and no leave to appeal has been filed by the State on that count.

(3.) Learned counsel for the appellant contends that the appellants are liable to be acquitted for non-compliance of the mandatory provision of the NDPS Act i.e. Sec. 50. It is claimed that even if it was a case of chance recovery from Harikala, however the other accused were searched on suspicion of possession of drugs, thus notice under Sec. 50 was required to be given to them as mandated by law. There was a delay of 10 days in sending the samples to the FSL. The contraband was seized on 28/7/2012, however the same was sent to FSL only on 7/8/2012. HC Yad Ram/ PW-7 who took the samples from the malkhana to the FSL was also a part of the raiding team and witness to recovery of the alleged contraband from the appellants. From the testimony of SI Neeraj/ PW-8 it is evident that the chain of custody of the samples which was to be kept in safe custody has not been proved by the prosecution. SI Neeraj stated that he took the parcels from the malkhana vide RC No. 67/21/12 to the FSL CBI on 2/8/2021, however since the FSL did not accept the same on the said date, he returned the same to the MHCM and then again took the same back on 3/8/2012 and deposited the same with the FSL. This version of SI Neeraj is not fortified by the malkhana register as there is no entry of depositing back the samples on 2/8/2012 and again taking them to be deposited with the FSL on 7/8/2012. Acknowledgement of case acceptance dtd. 7/8/2012 records that only 4 sealed cloth parcels were received. The memo No. 1793-96 is dtd. 7/8/2012 and exhibited vide Ex.PW-11/B. The prosecution having failed to show the safe custody of the alleged contraband, the appellants are entitled to be acquitted on this ground itself.