MOHAMMAD SHARIF ABDUL KHALIL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant before us has assailed the validity of his conviction under section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985. It is alleged that on the evening of 6-2-1988 at about 18. 30 hrs. at Malegaon the police acting on the basis of information apprehended the appellant and that on a search of his person five small packets containing heroin are alleged to have been found. A panchanama was drawn up and the appellant was thereafter taken to the police station. It is further alleged that the appellant made a statement, which the police recorded, on the basis of which they proceeded to his residence and it is the case of the prosecution that another twenty two small packets were produced by the appellant from his residence. These packets were also found to contain similar powder and the same were seized under a panchanama. The police forwarded both the sets of packets to the Chemical Analyser and there is no dispute about the fact that the C. A. report, which is at Ex. 21, indicates that on analysis the powder was found to contain hereoin. The appellant was charge-sheeted and put up for trial and the learned IV Additional Sessions Judge, Nashik found the appellant guilty under section 22 of the N. D. P. S. Act and on conviction sentenced him to R. I. for 10 years and to pay a fine of Rs. 1,00,000/-, in default further R. I. for six months.

(2.) MR. Hoshing, learned Counsel appointed on behalf of the appellant, has taken us through the evidence, but he has concentrated his challenge to pointing out that there appears to be a serious lacuna in the prosecution case with regard to the identity of the powder which is alleged to have been recovered from the custody of the appellant. Mr. Hoshing has drawn our attention in the first instance to the evidence of the panch who unequivocally admits that when the five packets are alleged to have been seized, the police opened these packets obviously for the purpose of finding out the nature of the contents, and that the powder was thereafter emptied into a piece of paper which in turn came to be sealed. There can be no vagueness with regard to what the panch witness has deposed to because he once again states with regard to the second seizure that the contents of the twenty two packets were also emptied into a common paper and that it was this paper which was sealed. P. W. 3 Police Constable Kishor Doke has said that he was entrusted with the two packets which were transmitted by him to the Chemical Analyser. A persual of the C. A. report at Ex. 21 very clearly indicates that the police had sent two paper packets for analysis and on opening these two packets, the Chemical Analyser found in the first instance five pudis and in the second instance twenty two such pudis. Mr. Hoshing submits that this position is irreconcilable with the other evidence that has come on record. He submits that if the contents of twenty seven packets were emptied into two respective papers, the prosecution ought to have explained as to how the powder got back into different pudis at the time when they were sent for chemical analysis. It is the contention of Mr. Hoshing that the identity of the material is in serious dispute because if the evidence of the panch is accepted, then it is obvious that the packets which were sent for chemical analysis to the Chemical Analyser substantially differ from the material that was seized from the appellant. No explanation has been put-forth by the prosecution for this state of affairs and in our view it seriously affects the veracity and credibility of the prosecution case. In a case of the present type where there is no scope for any doubt with regard to the identity of the material that was seized from the appellant and that was sent for analysis and if there appears to be a serious difference between the one and the other, the benefit of that doubt will have to go to the appellant.

(3.) IN this view of the matter, it is our considered finding that the conviction of the appellant cannot be sustained and we accordingly allow the appeal. The conviction and sentence are quashed and set aside. We direct that the appellant-accused, who is at present undergoing sentence, be released forthwith if not required to connection with any other case. Appeal allowed.