RAYEES AHMAD Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) THIS appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 28.04.2006, passed by learned Additional Sessions Judge/Fast Track Court, Kashipur, District Udham Singh Nagar, in Special Sessions trial No. 83 of 2003, whereby accused/appellant Rayees Ahmad has been convicted under Section 8/15 of the narcotic Drugs and Psychotropic Substances, Act, 1985 (hereinafter referred as N.D.P.S. Act), and sentenced to undergo rigorous imprisonment for a period of ten years and also to pay fine of Rs. 1,00,000/ -, in default of payment of which, the accused/appellant is directed to undergo rigorous imprisonment for a further period of one year. Heard learned counsel for the parties and perused the lower court record.

(2.) PROSECUTION story, in brief, is that on 18.05.2003, Sub Inspector Rajveer Singh (P.W. 3) along with Constable Sudesh Kumar (P.W. 1), Constable Mahendra Singh and Constable Chaman Singh (P.W. 2) were on patrol duty. When they reached near Graveyard Road turn, about one kilometer away from the police station Jaspur, a person was seen carrying a white plastic bag. On seeing the policemen, he was taken aback and started going back. On this, police suspected him of carrying some unlawful item and after chasing caught him at 17:30 hours. When he was asked about the contents of the bag he told that there is ten kilograms of poppy husk in it. On this, the person apprehended was told that if he likes he can be produced before a Magistrate or a Gazetted Officer for his personal search. In reply to this, the apprehended person told the policemen, since, he has now been apprehended his search may be taken. A memorandum giving consent (Ext. A -1) was recorded. Then, the policemen asked his name which he disclosed as Rayees Ahmad son of Mohd. Sharif, resident of Mohalla Chauhanan, police station Jaspur, District Udham Singh Nagar. The bag containing ten kilograms of poppy husk was sniffed by the policemen and they were satisfied that it is poppy husk, which is a contraband for which the accused possessed no license. The policemen took out 300 gms. of poppy husk from the bag for sample and scaled the bag and also the sample taken out of it. They also prepared sample seal separately. A memorandum of recovery was also prepared. A first information report was lodged on its basis at police station Jaspur on the very day i.e. 18.05.2003, at about 19:15 hours against the accused/appellant Rayees Ahmad, relating to offence punishable under Section 18/20 of N.D.P.S. Act. The investigation was taken up by Sub Inspector S.N. Mishra. The sample of the sealed item was sent for chemical examination vide letter dated 22.05.2003 (Ext. A -8). After investigation a charge sheet (Ext. A -9) was submitted by the Investigating Officer against the accused Rayees Ahmad.

(3.) LEARNED counsel for the appellant drew attention of this Court to the principle of law laid down in Gurbux Singh Vs. State of Haryana, 2001 Judicial Criminal Cases 308, and argued that the conviction recorded by the trial court is erroneous in law as evidence on record does not prove that the Chemical Examiner received the sample with proper intact seal. In this connection, on behalf of the appellant, reference is made to statement of P.W. 3 Rajveer Singh, the Sub Inspector who has stated in his cross -examination that while sealing the seized contraband he affixed his own seal, while the report of the Chemical Examiner dated 23rd June 2003, on record, discloses that the seal was of one A.K. Verma. As such, it cannot be said that the item sealed is not tampered with.