This is an appeal preferred by the State of Gujarat against acquittal of respondent - Nathusing Anopsing Solanki from accusation of an offence punishable under Section 17 of the Narcotics Drugs and Psychotropic Substances Act by Sessions Court, Banaskantha at Palanpur in Sessions Case No.187 of 1990. 2. As per prosecution case, the respondent was found to be possessing 300 gram of opium at Palanpur S.T. Bus Stand between 03:00 to 04:00 hours of 24th July, 1990, for which he did not possess any pass or permit. He was apprehended by police upon suspicion, samples were drawn and sent to FSL for analysis. The respondent was arrested and, ultimately having found that the seized material was contraband opium, he came to be charge-sheeted and tried. Charge was framed at Exh.3 in Sessions Case No.187 of 1993 to which accused pleaded not guilty and came to be tried.
3. The trial Court found that there was discrepancy in the weight of the sample claimed to have been drawn by the Investigating Agency and recorded acquittal and hence this appeal.
4. We have examined Panchnama (Exh.12) and we find therefrom that two samples of the contraband weighing 10 grams each were drawn and the sample as well as remaining part of the contraband being 280 grams of opium were sealed and seized separately. One of the samples was sent to FSL. FSL report (Exh.37) states that the sample, which was received, weighed 14 grams with polythene paper.The FSL Expert who received and analyzed the sample has not been examined.
4.1 We also notice that the seizure of contraband is not properly proved by the prosecution, because the Panch Witnesses have not supported the prosecution case. So far as Police Witnesses are concerned, P.W. No.10 – Lavjibhai Kanabhai Pranami, has been examined at Exh.32. He also states that two samples of 10 gram each were drawn. Similarly, P.W. No.8-Jorabhai Punjabhai, Head Constable, who has been examined at Exh.24 also states in his examination in chief that two samples of 10 gram each were drawn from the main quantity.
5. Thus, there is consistent evidence of prosecution witnesses that the samples drawn were of 10 gram each including the contemporaneous evidence in the form of Panchnama which was drawn. Witness – Jamtaji Hinduji, Police Constable, examined at Exh.20, denies in his cross-examination that one of the samples with polythene paper weighed 14 grams.
Therefore, there is inconsistency in evidence led by the prosecution. Not only that, most of the witnesses speak about having drawn samples weighing 10 gram each, but one of the witnesses even denies that one of the samples weighed 14 grams with polythene paper which is indicated to have been received by the FSL. It is to be noted that although the difference in weight appears to be just 04 grams in comparison to the sample, the difference is of 14% and assumes greater significance, when the Panch Witnesses do not support the prosecution case.
6. In our view, the trial Court cannot be said to have committed an error in recording acquittal. We are in agreement with the view taken by the trial Court. The view taken by the trial Court cannot be said to be an impossible one and, therefore, this appeal cannot be entertained. The appeal must fail and stands dismissed.
(A L DAVE, J.) (A J DESAI, J.) sompura