(1.) By the present appeal the Appellants impugn the judgment dated 13th January, 2011 whereby the Appellants have been convicted for offence punishable under Section 20 NDPS Act and the order on sentence dated 24th January, 2011 whereby they have been directed to undergo 10 years rigorous imprisonment with fine of Rs. 1 lakh and in default of payment of fine to undergo six months rigorous imprisonment.
(2.) Learned counsel for the Appellant contends that in the alleged contraband only leaves and twigs were found, thus the same does not fall within the definition of Ganja as defined under Section 2(iii)(b) of the NDPS Act. There is violation of mandatory provisions of Section 42 and 50 NDPS Act as no information was given to the senior officers by the searching officer. Further the searching officer started searching the Appellants without obtaining authorization from senior officers. Though Section 50 of the NDPS Act was not attracted, however still notice was given and the notice does not bear signatures of the Appellants. Their signatures were taken only on the refusal. As per the seizure memos, the recovered articles contained patti and danthal-numa Ganja. The samples were sent belatedly for examination to the FSL after 35 days. The seals continued to be in the possession of the SHO and the IO and thus tampering with the case property cannot be ruled out. Despite 4 samples were taken only 1 form FSL was filled up. There is contradiction in the testimony of the witnesses to this extent as well. The searching officer PW9 states that only 1 form FSL was filled whereas other witnesses of the raiding team PW5 and PW7 state that 4 form FSL were filled. Though 2 kgs of samples were taken from each contraband, however the samples when weighed at the laboratory weighed more. Hence tampering with the samples is apparent. Further from Appellants Baijnath and Rajesh only intermediate quantities of contraband were recovered hence the Appellants be acquitted of the charge framed and in the alternative their sentence should be reduced to the period already undergone. Reliance is placed on Mohd. Ibrahim Vs. State of NCT of Delhi Crl.A. No. 426/2010 decided on 27th November, 2010 by this Court.
(3.) Learned APP on the other hand contends that the report of PW10, the FSL expert is clear and it is stated that the contrabands were recovered with flowering and fruiting tops. The Moharar malkhana has clearly stated that as long as the samples remained in his custody, they were not tampered with and thus in view of State of Punjab Vs. Lakhwinder Singh & Anr., 2010 4 SCC 402 no benefit can be granted to the Appellants on this ground. The contention of the learned counsel for the Appellant with regard to the difference in the weight of the sample has been dealt with by the learned Trial Court and it has been held that much importance cannot be laid on these small variations. Further the seal after use was handed over to Constable Suresh at the spot and thereafter the case property was sent to the Police station where PW4 Inspector Gurmeet Singh also affixed his own seal and deposited the case property and the samples in malkhana. Under these circumstances SI K.P. Singh had no access to the case property and even if he received the seal back on the same day, the same does not make any difference. Ex.PW1/5 shows that intimation was given to the senior officers.