(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeals are directed against the common judgment & order passed by the learned Sessions Judge in Sessions Case No.110/05, whereby the learned Sessions Judge has convicted original accused no.1 (A1) (appellant of Criminal Appeal No.1525/10) and original accused no.2 (A2) (appellant of Criminal Appeal No.20/07) under section 20, 22(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”) and has imposed sentence upon the A1 of 13 years RI with fine of Rs.1 lakh and 1 year SI for default in payment of fine and has imposed sentence upon A2 of 10 years RI with the fine of Rs.1 lakh and 1 year SI for default in payment of fine.
2. As per the prosecution case, the Superintendent of Prohibition Striking Force 1, Ahmedabad on 02.01.2005, p.w.4, received the information that two males and one female were at Bhagyoday Hotel near Gita Mandir to Bhut ni Ambli road and they were in possession of psychotropic substance brown sugar and they were in search for the customers. Therefore, he called for panchas through his subordinate staff and went to the place of Bhagyoday Hotel and after following the procedure, he as per the act, he searched two bags in possession of A1 and A2 and it was found that each had one bag. A1 had one bag having weight of 1 kg and 14 grams (996 grams net weight) and A2 was in possession of bag having weight of 316 gram (306 gram net weight) and upon testing, it was found as brown sugar and therefore, the total quantity was seized. Nothing was found from the lady – A3. Therefore, the complaint was filed under sections 8(C), 21 and 29 of the NDPS Act against all the accused.
3. As per the prosecution case, at the time when the raid was carried out and the brown sugar was recovered, the necessary procedure was followed by the raiding officer for search and seizure and opportunity was also given to the accused if they so desired for search and seizure in presence of any magistrate or any other gazetted officer which was not availed. Thereafter, further investigation was made and ultimately, the chargesheet was filed against all the accused and the case was committed to the learned Sessions Judge being Sessions Case No.110/05. The prosecution in order to prove the guilt of the accused, examined 7 witnesses whose details are mentioned by the learned Sessions Judge at para 5 of the judgment. The prosecution also produced documentary evidence of 21 documents, the details of which are mentioned by the learned Sessions Judge at para 6 of the judgment.
4. The learned Sessions Judge thereafter, recorded the statement of the accused under section 313 of the Cr.P.C. wherein all the accused denied evidence against them but in the further statement, A1 stated that he had come to visit his uncle's place at Juhapura, but when he was at the platform, he was caught by the police and he had not committed any offence and he was innocent. Whereas A2 stated that he had come for a job to Ahmedabad and A3 stated that she had come for religious work and the police had arrested and they were innocent. The learned Sessions Judge thereafter, heard the prosecution and the defence and ultimately, convicted A1 and A2 and acquitted A3 and imposed sentences upon A1 and A2 as referred to hereinabove. Under the circumstances, the present appeals before this Court.
5. The learned counsel appearing for both the sides have taken us to entire record. We have considered the judgment and the reasons recorded by the learned Sessions Judge. We have also heard Ms. Sadhna Sagar, learned counsel appearing for the appellants in both the appeals and Mr.KL Pandya, learned APP for the State in both the appeals.
6. The aspect of search and seizure has been proved by the prosecution through the oral evidence of the witnesses and with the help of concerned relevant documents. Even on the aspects of recovery, there is evidence of recovery of alleged substance from the possession of A1 and A2 of the quantity, the details of which was mentioned in the charge. However, in our considered view, mere proof of recovery of certain material from the possession of the accused is not sufficient, but it is also required for the prosecution to prove that out of the material recovered, the samples were drawn. The very samples were sent to FSL and as per the FSL report, psychotropic substance which in the present known as brown sugar was found then only thereafter it could be said that the prosecution has been able to prove the case for the charged offence. If the prosecution does not prove the case beyond reasonable doubt the aforesaid aspects, it cannot be said that the act has been strictly complied with and the conviction consequently cannot be recorded. At this stage, we may refer to the recent decision of the Apex Court in the case of State of Rajasthan Vs. Dara Singh reported at 2011 (1) SCC 559, which was also a case under the NDPS Act wherein the Apex Court laid the emphasis at para 6 as under:
“We must emphasise that in a prosecution relating to the Act the question as to how and where the samples had been stored or as to when they had despatched or received in the laboratory is a matter of great importance on account of the huge penalty involved in these matters. The High Court was, therefore, in our view, fully justified in holding that the sanctity of the samples had been compromised which cast a doubt on the prosecution story. We, accordingly, feel that the judgment of the High Court on the second aspect calls for no interference.”
Ultimately, the appeal was dismissed.
7. We may also state that in the aforesaid decision, the Apex Court did not approve the view of the High Court for compliance to the provisions of section 50 of the Act but on the second aspect for which the view was expressed by the High Court that there was no evidence to show as to when the samples had been sent to laboratory, since there was time gap between 26.02.1998 to 09.03.1998 in forwarding of the sample and reaching to the laboratory and no evidence was produced by the prosecution to explain the delay and the place at which the samples were stored, during the aforesaid period. It was found by the High Court that sanctity of the sample was compromised which cast doubt on the prosecution story and therefore, the High Court had found the case for acquittal by reversing the judgment of the learned Sessions Judge for recording conviction and that part of the view of the High Court was not interfered with by the Apex Court and while holding so, the aforesaid emphasis was led by the Apex Court.
8. It is hardly required to be stated that strict compliance of the act is a must in the cases under NDPS Act since penalty involved in this matter is serious and also huge. It is in light of the aforesaid, we have to further consider the evidence available on record as led by the prosecution.
9. It was contended by the learned counsel for the appellants that there is difference in the seal of the samples recovered and the samples sent to FSL.
10. Whereas, the learned APP submitted that there is no contradiction as sought to be canvassed on behalf of the appellants and the samples which were sealed in presence of panchas were the only samples sent to FSL for examination, wherein it was found that the material was prohibited psychotropic substance, viz., brown sugar.
11. As per the prosecution case, report of the FSL was produced at exhibit 54 and the report does contain that upon examination of the said samples, it was found that the material was known as brown sugar. However, in the said report, it is mentioned that two parcels containing Mark A/1 and Mark B/1 stitched with the thread in sealed conditions were received and the said seals were of “Supri P & D Avad D.V. Stra Force No.1 Gujarat State (In Gujarati and of wax seal). This makes it clear that there were seals over the sample which was sent to FSL but the seals were in Gujarati.
12. As per the prosecution case, when PW4 in presence of panchas, PW3, after recovery, segregated the portion for the purpose of sample, as marked as A/1 and B/1, the seals were applied. Thereafter, all materials including complaint, panchnama, arrest memo, etc. and muddamal in sealed conditions were handed over to PW1 Ramabhai Pethabhai who was PSO in prohibition and excise (south) police station. His deposition has been recorded at exhibit 18 and he has deposed that he had received all muddamal in sealed condition on 02.01.2005 at 6.30 evening. The pertinent aspect is that in the crossexamination, the said witness has deposed that the seal was in the name of Police Superintendent and Ahmedabad City and there was emblem of Ashok Sthambha in the center of the seal and he has further stated that seal was in English language. As recorded earlier, the samples which were received by the FSL being marked A/1 to B/1 were containing the seal which was in Gujarati. Whereas, as per the PSO, PW1, the samples which was received by him at the initial stage before forwarding to the FSL was in English language. There is no explanation whatsoever in the deposition of the said witness nor the prosecution has laid any evidence for explaining the aforesaid contradiction in the seals of muddamal and the samples received by the PSO at the first instance and received by FSL for further examination.
13. If samples which were sealed in presence of panchas and so received by PSO were the same, as sent to FSL, it would have contained seal in English language. Whereas, the FSL has received the samples with the seal in Gujarati. Under these circumstances, in absence of any explanation coming on record as to the aspect of application of the seal of Gujarati language and of English language, it cannot be said that the prosecution has been able to prove that the samples from the material which was found from the possession of the accused and sealed in presence of the panchas were the same as sent to FSL and subsequently examined by FSL containing psychotropic substance, viz., brown sugar. The test is to prove beyond reasonable doubt and the burden upon is the prosecution and the strict compliance to the provisions of the Act is a must. Under these circumstances, in absence of any explanation coming on record by the prosecution through evidence of any witnesses, it cannot be said that the prosecution has been able to prove beyond reasonable doubt that the samples tested by FSL were the same as recovered and sealed by the raiding officer in presence of the panchas and subsequently handed over to the PSO, PW1. The benefit of doubt would go to the accused of such lapse or lacuna in the case of the prosecution.
14. If the link as referred to hereinabove of sending of the same sample to the FSL in the sealed conditions was not proved, the substratum of the case of the prosecution in our view would be lost inasmuch as it cannot be said that the prosecution has been able to prove the case beyond reasonable doubt that the prohibited psychotropic, viz., brown sugar was found from the bags which were in possession of the accused. Unfortunately, the aforesaid aspect has been lost sight of by the learned Sessions Judge and the finding on the contrary has recorded that the samples sent for examination were containing the same seals and therefore, there was no tampering and the said aspect as per the learned Sessions Judge was clear.
15. Under the circumstances, we find that the judgment and the order passed by the learned Sessions Judge for holding the accused guilty for the charged offence and recorded conviction and consequently imposing sentence cannot be sustained.
16. In view of the aforesaid observations and discussions, the appeals are allowed. The impugned judgement and order of the learned Sessions Judge is quashed and set aside. The appellantsaccused be set to liberty forthwith, unless their presence is required for any other lawful purpose.
(JAYANT PATEL, J.) (PARESH UPADHYAY, J.) *bjoy