The State of Gujarat has preferred this appeal to challenge the judgment and order passed by Sessions Court, Palanpur in Sessions Case No.15 of 1992 on 06/05/1993, acquitting the respondent of the offences punishable under Sections 17 and 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short NDPS Act). 2. The case of the prosecution before the trial Court in brief was that the respondent was found to be in possession of two plastic bags containing contraband opium at about 4:00 p.m. on 07/10/1991 on Kunchavada – Mandar road of Dhanera Taluka of Banaskantha District. This quantity was seized from his person. The weighment was done on the spot, samples were drawn and thereafter contraband and the samples were sealed in presence of Panch Witnesses. This entire procedure, as per prosecution case, was undertaken on the spot. The seized material having been certified to be contraband opium, charge-sheet was filed in the Court of learned JMFC, Dhanera, who committed the case to the Court of Sessions and Sessions Case No.15 of 1992 came to be registered. Charge was framed against the accused at Exh.3 to which he pleaded not guilty and claimed to be tried.
3. At the end of trial, the Sessions Court found that charges were not proved by the prosecution and, therefore, the trial Court recorded acquittal and hence this appeal.
4. We have heard learned APP, Mr.Dabhi, who has taken us through the record and proceedings. The respondent is not represented by anyone.
5. We find from the evidence that the Panch Witnesses, in whose presence the Panchnama is claimed to have been drawn, have not supported the prosecution case. Thus, the entire search, seizure, drawl of samples and sealing cannot be said to have been proved by the prosecution through independent evidence.
5.1 However, the Investigating Officer has deposed about the same and, therefore, the Panchnama is exhibited at Exh.41. A look at the Panchnama would indicate that the search, seizure, weighment, drawing of samples and sealing was done at the place of incident. Whereas, if the evidence of PW No.3-Kantilal Talsaji (Exh.9) is seen, he is the person who did the weighment. According to him, he was called by the Police at the Police Station alongwith scales. He went there. This witness is declared hostile to the prosecution.
6. The trial Court considering these aspects recorded acquittal. In our view also, if the very seizure is not proved through independent witnesses and the Panchnama, which is proved through Police, speaks of weighment, etc., being done at the spot in contrast of the evidence of the witness who did the weighment to the effect that the weighment was done by him at Police Station, the entire investigation reels under a cloud of doubt. It goes to the root of the entire prosecution case and, therefore, the view that is taken by the trial Court cannot be said to be an impossible one or palpably erroneous. We do not deem it proper to interfere with the judgment of the trial Court, as we do not find any merits in the appeal. The appeal must fail and stands dismissed.
(A L DAVE, J.) (A J DESAI, J.) sompura