TEJA RAM Vs. STATE OF HARYANA

JUDGEMENT

(1.) ACCUSED Tej Ram was convicted for the offence under Section 18 of the NDPS Act, 1985. He has challenged the conviction and sentence passed by the trial Court.

(2.) THE brief case of the prosecution is that on 19.6.2005, PW6 SI Jagdish Chander attached to Police Station Sadar Sirsa proceeded alongwith PW5 SI Maan Singh and other police officials for performing patrolling duty near canal bridge of village Neja Kalan. At that point of time, the accused was found coming from the side of Handi Khera carrying a cloth bag in his hand. On suspicion PW6 served a notice Ex. PE informing the accused of his legal right to get a search done in the presence of a gazetted officer. As desired by the accused, PW2 DSP Balbir Singh was associated for the purpose of search. In his presence, the bag carried by the accused was searched by PW6. It contained opium. Two samples of 50 gms. each were taken out. The remaining opium weighed 4.900 kgs. The samples were put in a small plastic container. The residue was put in a plastic jar. The samples as well as the residue were separately parceled . PW2 and PW6 affixed their respective seals on the parcels of the contraband. The accused was arrested. The sample as well as the residue contraband were deposited with PW3 MHC Madan Lal. PW4 Subhash Chander took the sample to the chemical examiner on 28.6.2005. The chemical examiner returned a report on analysis that the sample contained 3.4% Morphine.

(3.) THE learned counsel appearing for the accused -appellant would submit that nothing was recovered from the accused. Referring to the order of remand (Ex.PH/3) passed by the learned Judicial Magistrate, he would submit that the Judicial Magistrate infact certified that only plastic bag allegedly containing opium was produced. The case property was not produced before the judicial malkhana as directed by the Judicial Magistrate. The link evidence is missing. There was no evidence to show that the samples as well as the residue were taken out from the malkhana for the purpose of producing before the Judicial Magistrate. The contraband was not produced before the Court. Referring to the chemical examiner's report, he would submit that the forwarding letter was prepared as early as on 23.6.2005. Therefore, in all probability the sample should have been taken out from the malkhana on the said day. He would also brought to the notice of this Court that the chemical examiner's report would indicate that the sample contained only 48.1 gms. and not 50 gms. as spoken to by the witnesses examined on the side of the prosecution. Referring to the decision of this Court, he would submit that the accused is entitled to acquittal even on the ground that the quantity of the sample sent for examination did not tally with the quantity of sample taken for analysis by the chemical examiner.