ABDUL HAQ Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS appeal has been directed against the order of conviction and sentence dated 10.7.90 passed by the Sessions Judge, Guna, under section 8 read with section 200fthe Narcotic Drugs and Psychotropic Substances Act, 1985 (Act No. 61 of 1985) (hereinafter referred to as the N.D.P.S. Act) to a term of 15 years R.I. and a fine of Rs. 2,00,000/ - each.

(2.) THE facts of the case leading to the appeal are that on 8.12.1988 Virendra Kumar Sharma, Narcotics Inspector of Central Narcotics Bureau Guna received secret information that some contraband articles is to pass from Agra -Bombay road. He along with Constable Devendra Kumar Baretha went to village Gadara, district Guna at about 2 or 2.30 P.M. They were standing on the road near village Gadara. They saw an Ambassador Car of blue colour bearing No. M.R.A. 4724 coming from Guna side. Virendra Kumar Sharma stopped the car and found three persons inside it. Appellants Nos. 1 and 2 were on front seat and one person was on the back seat. He made enquiry from the driver and he gave out his name as Mahfujar Rehman i.e. appellant. No. 2. His other companion who was sitting along with him was Abdul Haq, appellant No.1 and the person sitting behind him was Jallaluddin, appellant No.3. They told they were coming from Nepal. The Inspector disclosed his identify as Narcotics Inspector and wanted to search the appellants. Appellants did not object. Search was, however, taken and Charas was recovered from polithene bags in car which was hidden inside doors and hack seat. The search was taken before Sukhdevsingh and Shambhusingh who were also present. The Charas was seized. 30 packets containing Charas were prepared and recovery memo was prepared. It was signed by two witnesses and the appellants and both the officials. 20 sample packets were prepared and sealed separately. They were sent for chemical examination. The accused persons were arrested and were taken to the office of Narcotics Department at Guna. They were produced the next day before the C.J.M. Guna and they were sent to jail. Samples were sent to Neemuch on 12.12.88. According to the report of the Chemical Examiner it was found to be Charas (Cannabis hemps). A complaint was filed before the Chief Judicial Magistrate Guna. The case was committed to the Court of Sessions which was tried by the Additional Sessions Judge hut later on withdrawn by the learned Sessions Judge. The accused person denied the charge and claimed that they were falsely implicated by the Inspector in order to get reward. The prosecution examined P.W. 1, Sukhdevsingh, P.W. 2, Shambhusingh, P.W. 3, Devendra Kumar Baretha, P.W. 4, Virendra Kumar Sharma, Inspector, Central Narcotics Bureau, Guna. P.W 5, Chandrashekharan Pillai Chemical Expert. P.W. 6, Samantsingh who had taken the samples for chemical examination and relied upon documents Ex. P -1 in support of his case. The accused persons examined one Khan Begas D.W. 1. The learned trial Court after considering the material on record and hearing the parties held the accused guilty of the offence punishable u/s 8/20 of the N.D.P.S. Act and convicted and sentenced them as aforesaid. Feeling aggrieved the present appeal has been preferred.

(3.) THE next argument of the learned counsel is that in this case the sample was sent for chemical examination with delay. It is not clear from the material on record as to whether the alleged recovered articles were kept intact or not. The learned counsel further argued that if there is no evidence to show that during the period between the seizure and production in Court the article was kept under seal and it is doubtful that the article sent for chemical examination was the article which was sealed, no conviction can be maintained. In order to support his contention he relied on 1993 Supreme Court Cases (Cri) 1082 (Valsala v. State of Kerala). He also contended that according to the case of prosecution 20 packets were prepared, 10 packets were sent to one plece and the other 10 were sent to another place. But there is nothing to show as to what happened to the samples which were sent to Delhi. It was the duty of the prosecution to have produced the result of that examination as well. As it has not been proved that the articles which were sent for chemical examination remained intact, it is doubtful and as such the order of conviction passed by the trial Court cannot be maintained. The learned counsel took me through the statements of the witnesses examined to show that the compliance of the mandatory provisions of law referred to above has not been made.