MD AYUB Vs. STATE OF ASSAM

JUDGEMENT

(1.) This appeal arises out of judgment and order dated 19.2.97 as passed by the Sessions Judge, Kamrup Guwahati in Sessions Case No. 95(K)94 thereby holding the appellant guilty of offence punishable under Sec. 21 of the Narcotic Drugs and Psychotrophic Substance Act. 1985, for short ' the NDPS Act', and sentencing him to undergo R. I. for 10 years with fine of Rs. 1,00,000/- or in default in payment of fine to suffer 6 months R.I.

(2.) Prosecution case stated in brief was that on 3rd June 1994 Inspector Alauddin Ahmed of the Excise Department was on his usual rounds of checking at the Railway Station, Guwahati. While checking the passengers at the Railway overbridge he stopped accused appellant with a suitcase in his hand as his movement arose suspicion. He was checked and searched which revealed that he was carrying 5 packets containing total quantity of 1'150 Kg of heroin which was seized as per the Seizure List Ext. I. The matter was reported to his immediate superior. The accused was produced along with the seized articles before the Chief Judicial Magistrate. It is stated that sample weighing 5 gms each were collected in presence of the Magistrate and sent to the State Forensic Science Laboratory for Chemical examination. The report received is Ext. II. The result was positive article of heroin. On completion of investigation the accnsed was charged and tried for offence punishable under Section 21 of the NDPS Act. The first question as rightly posed by the trial Court is, whether the articles seized was Heroin a manufactured drug as defined in Clause (xi) of Section 2 of the NDPS Act. The trial Court placing reliance on evidence of PWs 5,6 and 7 has held that the articles seized from the possession was heroin.

(3.) Learned counsel appearing for the appellant has assailed the findings mainly on the grounds that there was no sealing of the Articles when it was actually seized and there is no evidence adduced by the prosecution to show that the article seized from the possession of the accused remained intact till it was produced before the Magistrate and, thereafter sent to and received by the State Forensic Science Laboratory. There is not a slightest whisper in the evidence of PW 5 that the sample as received by him was intact and the seals thereon tally with any specimen seal impressiion separately sent to the Forensic Science Laboratory.