SONI PERSHAD SONI Vs. STATE

JUDGEMENT

(1.) By judgment dated 11/12th October, 1993 , the appellant was convicted by the Additional Sessions Judge for his having committed an offence punishable under Sections 20/61/85 of the Narcotic Drugs and Psychotropic Substances Act (in short referred to as "the Act") and sentenced to undergo rigorous imprisonment for ten years and fine of Rs. 1,00,000.00 In default of the payment of fine, the appellant was further to undergo rigorous imprisonment for two years. Aggrieved by the judgment of the appellant of the Additional Sessions Judge, the appellant has filed this appeal. The facts in short relevant for deciding this appeal are

(2.) That on receipt of a secret information that one person would be coming at about 05.00 p.m. near the garbage dumping place at Shyama Prashed Mukherjee Marg with charas and if a raid is organised, he could be apprehended, SI R.S.Yadav, Chowki In-charge Church Mission Road, PS Lahore Gate, Delhi informed the SHO, Lahor Gate about the same and organised a raiding party by associating some police officials and proceeded to the place of occurrence. A few public persons were asked to join the raiding party, however, except one Braham Kumar all other persons did not agree to join. At about 5.10 p.m. on the pointing out of the informer the appellant was apprehended, he was informed the reasons for his detention and was further told that in case he wanted to search any of the police officials, he could do so. Notice under Section 50 of the Act was given to the appellant informing him that in case he desired his search could be conducted before a Gazetted Officer or a Magistrate but the appellant is stated to have declined to be searched before either a Gazetted Officer or a Magistrate. Investigating Officer thereafter conducted the search of the appellant as well as of the bag he was holding and on checking of the bag on his shoulder, a cloth bag of yellow white colour containing polythene packets filled with charas were recovered. On weighing, the narcotic drug was found to be two kilograms. 200 grams of charas was separated as sample and was converted into a parcel and the rest of the charas was packed in the same manner into other parcel in the same bag which was held by the appellant. The sample as well as bag were thereafter sealed and one of the seals is stated to have been given after use to the public witness. Form CFSL was also filled at the spot and both the parcels as well as CFSL form were then handed over to the SHO for safe custody. The CFSL form and the sample was alleged to have been sent to the laboratory and on receipt of the report the challan was filed in Court. Learned Additional Sessions Judge after recording evidence held the appellant guilty of the offence punishable under Sections 20/61/ 85 of the Act and sentenced him to undergo RI for ten years and also imposed a fine of Rs. 1,00,000.00

(3.) The main argument of learned counsel for the appellant assailing, the'judgment is that there was no evidence on record to show that the CFSL form had been deposited with the Moharrir Malkhana and was sent along with the sample to the laboratory. The condition is that as the vital link from the time of filling of CFSL form till the time the sample reached the a laboratory was missing, the possibility of the sample having been tampered with cannot be ruled out. Which, according to the counsel, itself was aground of acquittal.