CHARANLAL ALIAS VEERALAL Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The appellant has been convicted u/S. 18 of the N.D.P.S. Act for having kept in his possession 400 gms. of opium on the night between 27th and 28th May, 94 while the appellant was moving on the road in front of High School, Tendukheda and he was searched after giving him opportunity and notice that he could get himself searched before a magistrate or a gazetted officer. He preferred to be searched by the A.S.I. He was found to be carrying a bag in which wrapped in a lungi a plastic wrapping was found which had contained opium about 400 gms. It was seized, searched taken into possession vide memorandum of possession and was sent to excise inspector for testing it, if it was opium. The excise inspector opined it to be opium but further desired that it should be chemically examined. So it was chemically examined and was found to be containing more than 4% of morphine and other alkaloids. The accused was prosecuted, he was found guilty and has been sentenced to R.I. for 10 years and fine of Rs. 1 lakh, in default of fine R. I. for one year.

(2.) The contention raised by the appellant's counsel was that only the police official A. S. Khan has supported the version of the recovery of opium from him. The other 2 witnesses have denied this recovery. It is urged that although the prosecution cross-examined them as hostile witnesses yet the evidence of Asstt. Sub-Inspector by itself was not sufficient to prove the guilty of the accused on such a grave charge which carries a heavy punishment. The argument is that standard of proof 'beyond reasonable doubt' has been achieved. Secondly, it is argued that there was no proper compliance with the provisions of the N.D.P.S. Act. The identity of the recovered material from the time of recovery till inspection, is not proved to have been maintained. At least, there is a doubt about it. The other provisions of the N.D.P.S. Act were not complied with.

(3.) After hearing the counsel for the appellant and the State Counsel and perusing the record, this Court is of the clear opinion that this appeal must be accepted on the sole ground that the fact that the substance which was recovered from the accused was the same which was tested at the laboratory is not established beyond doubt. The investigating officer A. S. Khan appears as a witness PW 1 and narrated that he had sealed the recovered substance. He did not say how he had sealed it, what was the nomenclature of the seal. No impression of the seal has been retained on the seizure memo which is Ex. P-2 on record. There is no mention in this seizure memo as to what was the nomenclature of the seal. In fact it does not contain reference of sealing the substance at all. A bus ticket of the accused was also seized as the case of the prosecution was that he had got down from the bus. A. S. Khan had written a letter on the same day i.e. 28-5-94 which is the next day after the night of recovery. This letter Ex. P-6 is addressed to the excise sub-inspector requesting for conducting a test whether the recovered substance was opium. It mentions that the substance was being sent in a sealed condition. Even have there is no mention what was the actual marking of the seal. The report of the excise sub-inspector is Ex. P-12. The sub-inspector appeared as P.W. 2. In his report Ex. P-12 he narrates that he tested the substance on 30-5-94. It was received by him through a constable Rajesh No. 356. The report says that the packet bears seal of Police Station, Tendukheda. He opened it. Physcially he smelt and tasted it. By his experience of these characteristics of the opium, he found it to be opium. He says that he sealed it again, gave back to constable Rajesh. His report is dated 30-5-94. The statement of this witness in Court as PW 2 does not say what was the nomenclature of the seal he used. He does not say with what seal he himself sealed it and gave it back to constable Rajesh.