SAMSUGAI Vs. STATE

JUDGEMENT

(1.) A2 and A3 are the appellants herein. The appellants have come forward with this appeal challenging the conviction and sentence imposed against them by the Court below in its order dated 6.1.1996, in C.C-No.3 of 1996 convicting the appellants under Section 30 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter called "the Act" and sentenced them to undergo rigorous imprisonment for five years each and also to pay a fine of Rs.5000 and in default of payment of fine, to undergo further rigorous imprisonment for one more year.

(2.) THE brief facts of the prosecution case are that on 20.8.1993, based on an information when an Ambassador car driven by A1 was intercepted in front of Dental Hospital and a search of the dicky of the car was made, a suitcase was found containing Heroin weighing about 5.3 kgs, that thereafter, Al and the second appellant were taken into custody and on information furnished by them, the first appellant was apprehended on the same date, that thereafter, after two months, i.e. on 19.10.1993, fourth accused was also apprehended, that based on the investigation conducted, a complaint was lodged against all the accused 1 to 4 charging them with the offence falling under Sections 8, 23 and 29 of the N.D.P.S.Act. After trial, the Court below acquitted Al and A4 of all the charges and A2 and A3, the appellants herein, were also acquitted of all the charges. However, the appellants were convicted for the offence falling under Section 30 of the Act. Aggrieved by the said conviction and sentence, the appellants have come forward with this appeal.

(3.) FOR reaching the conclusion that no offence could be made out as against all the accused under Section 8(C), 23 read with 29 of the Act, the Court below held that there was a violation of mandatory provision of Section 50 of the Act and apart from the fact that there was no clinching evidence to establish that what was seized was the material which was sent for chemical analysis under Exs.P30 and P31. As per the findings of the Court below, there is variation in the seal number as admitted by P.W.8, the chemical analyst and also disclosed in Ex.P30, while in Ex-D2-A, the property was covered with seal No. 12, the contraband tested by P.W.8 was in respect of material covered under E.x.P30 which carried seal No.1 1. The Court below therefore concluded that the test report under, Ex-P31 cannot be corelated to the sample said to have been seized from the accused. It was on the basis of the above said finding, the Court below reached the conclusion that no conviction could be imposed against all the accused under Section B(C), 23 and 29 of the Act.