HANNAN Vs. STATE OF NCT OF DELHI

JUDGEMENT

(1.) By the present appeal, the Appellant impugns the judgment dated 26th March, 2010 whereby the Appellant has been convicted for offence under Section 20(b)(ii)(c) NDPS Act for illegal possession of 40 kgs of Ganja and the order on sentence dated 29th March, 2010 directing him to undergo rigorous imprisonment for 10 years with a fine of Rs. 1 lakh and in case of default of payment of fine to further undergo simple imprisonment for three months.

(2.) Learned counsel for the Appellant contends that no independent public witness was associated with the recovery, despite the recovery being from a crowded place. The narration of the events is highly improbable as no person would be standing with such a huge quantity of contraband at the bus stop near a Police booth. The Appellant is not involved in any other similar case. The samples of 1 kg and 2 kgs were taken, however when they reached the FSL the weights were different. There is an unexplained delay in sending the specimen samples to the CFSL as the alleged recovery was made on 25th July, 2006 and the samples were sent on 28th August, 2006. There are material contradictions in the statements of witnesses regarding the colours and descriptions of the bag. There is contradiction in the statements of the witnesses regarding the colour of substance recovered. Further the alleged contraband recovered does not fall within the definition of "Cannabis? as defined under Section 2(iii)(b) NDPS Act as the same had leaves and stems. There is discrepancy in the statement of the witnesses regarding the seals affixed. PW5 Nirmal Kumar stated that after sealing the samples and the case property the seals were handed over to HC Shamim Akhtar PW9. However, PW9 is silent about the receipt of the seals and till when they were in his custody. The details of the FSL form were not given in the register No.9 though mentioned in the road certificates. Reliance is placed on Rajesh Jagdamba Avasthi Vs. State of Goa, 2004 9 Scale 539, Sehdev Vs. State, 2009 5 AD(Del) 597, Balban Singh Vs. State, 2008 7 AD(Del) 52 and Sadhu Singh Vs. State of Punjab, 1997 3 Crimes 55. Thus, the Appellant be acquitted of the charges framed.

(3.) Learned APP on the other hand contends that seals of VK and VPD belonging to PW5 and PW10 were affixed on the samples and the case property. As per the CFSL report when the samples were tallied with the sample seals, the seals were found to be tallying and intact. Even as per the expert the recovered contraband was Cannabis as defined under Section 2(iii)(b) NDPS Act. Further the definition itself shows that when the leaves and twigs are accompanying the flowering or fruiting tops, the same are called "Ganja" and the leaves and twigs are not required to be separated therefrom. All the witnesses have spoken about filling of the FSL form.