AFSAR HUSSAIN Vs. NATIONAL CAPITAL TERRITORY OF DELHI

JUDGEMENT

(1.) This is an appeal against the order dated November 16, 1995 passed by Sri R.K. Sharma, Additional Sessions Judge, whereby the appellant has been convicted under section 20 of the N.D.P.S. Act. The prosecution story is that a secret information was received by the S.H.O. Chandni Mahal on Septembr 23, 1992 at about 6.40 P.M. consequent to which the appellant was apprehended in Gali Rajan Kucha Chelan by the raiding party comprising of Inspector R.K. Budhiraja, SHO, Chandni Mahal, SI Ishwar Singh, ASI Megh Raj, Constables Neelam, Subhash, Parvinder, Jagdish and Pradhan. On search of the appellant conducted before the A.C.P. Darya Ganj (Shri S.D.Sharma), 2 kgs. 50 gms. of charas was found in his bag out of which 50 gms. of charas was segregated to serve as sample. Both the same and the remaining case property were put in pulandas and sealed with the seal of MRS and RK. Sample was sent to the C.F.S.L. for analysis. On conclusion of the investigation charge sheet was filed and the appellant was sent for trial. The trial court found the appellant to have committed the offence under section 20 of the N.D.P.S. Act, 1985 and as a consequence thereof convicted and sentenced him to undergo rigorous imprisonment for ten years. Feeling aggrieved of the order of the learned Additional Sessions Judge the appellant has filed this appeal. I have heard learned counsel for the parties.

(2.) From the evidence on record it appears that the prosecution has not been able to prove the case against the appellant beyond reasonable doubt. Public Witness-1 HC Rishipal stated that the case property was deposited with him on September 30, 1992 by R.K. Budhiraja, S.H.O., Chandni Mahal. He further stated that on October 11, 1992 he handed over one pulanda and CFSL Form to Constable Virender Singh who was required to deposit the same with C.F.S.L., Chandigarh. Public Witness-6 Rashid, public witness, stated that he was associated with the raiding party. Both the seals after the pulandas were sealed were handed over to him on September 23, 1992. He further stated that the seals were returned after two days to the S.H.O. as the latter had requested him to hand over the same. From the aforesaid evidence it is clear that the incident took place on September 23, 1992 and the seals were given to Public Witness-6 on the date of the incident after the pulandas containing case property were sealed. However, after two days the seals were returned to the S.H.O. That means that the seals were handed over to the S.H.O. on September 25, 1992. The case property was deposited by the S.H.O. in the Mal Khana on September 30, 1992, i.e., after about five days of acquiring the seals from Public Witness-6. In view of the fact that the seals were available with the S.H.O. and the pulandas remained with him for a period of five days, the likelihood of tampering with the sample and the case property cannot be ruled out.

(3.) In view of the above discussion, the appeal succeeds and the appellant is acquitted of the charge under section 20 of the N.D.P.S. Act. The appellant will be released forthwith in case he is not needed in connection with some other case.