GUJARAT HIGH COURT
K.J. Vaidya and K.R. Vyas, JJ.
Mohammad Jahangirkhan Pathan - Appellant
versus
State of Gujarat - Respondent
Crl. Appeal No. 53 of 1994
Decided on 1.3.1994
Counsel for the parties:
For the Appellant: Miss D.R. Kachhavah, Advocate.
For the State : K.V. Shelat, A.P.P.

IMPORTANT POINT
When the Prosecution has failed to connect the accused with the recovery of charas, conviction recorded u/s. 20(b)(ii) of the NDPS Act, is not legally sustainable.

Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20(b)(ii) - Convictions under - Appeal - Recovery of six small pills of 'charas' weighing about 5 gms valued at Rs. 6/- Identify of muddamal sample not established - Public Analyst - Report does contain an opinion that the muddamal was found to be 'charas' - Nothing on the basis of which the sample analysed could be connected with the sample seized and sealed from accused - Prosecution has failed to connect the accused with the crime alleged against him - Accused entitled to be acquitted.

       Held: That merely because the Panchas do not support the prosecution ease, that by itself is hardly a ground to disbelieve the evidence of the Police witnesses, if they are otherwise found dependable. In fact, there cannot be two opinions in this aspect. But at the same time, in order to record the order of conviction and sentence on the basis of the evidence of Police Officers only, their evidence should be of the sterling quality, Clear enough, and beyond any measure of doubt to connect the accused with the' crime alleged against him. In such case, under the Narcotic Act, in order to, connect the accused with the crime alleged against him, the prosecution is required to prove beyond any measure of doubt the identity of the muddamal sample, that is to say the sample seized from the accused at the time of his search by the Police Officer and which ultimately case to be identified, analysed and found to be the Narcotic drug by the Public Analysis is one and the same only and none other. If the said identity of the muddamal sample falls short of to be established, the benefit of the same has got to be invariably resolved in favour of the accused. In the instant case, P.S.J. Nathani though he has not stated before the Court that he has affixed a seal of his Police Station, however since the muddamal was sealed under the Panchnama, one may not attach much importance to the same, as the said particulars are ultimately brought on the record and gets duly supported by the Panchanama. Further in the instant case, the matter does not simply rest here. On perusal of the Public Analyst Report (Exh. 17), there is indeed nothing in it on the basis of which it can be, said with certainly and beyond any manner of doubt that the muddamal sample came to be analysed by the Public Analyst was the very same received from the Investigating Agency. The report is totally vague so far as the fixing of the identity of the muddamal sample is concerned. In the report, what is stated is that one sealed paper packet was received. It does not say as to what seal was affixed thereupon. Not only that but whenever the sample is analysed, the seal of the sample is required to be broken open and in the process two .slips containing signatures of the Panchas and P.S.J. in whose presence the muddamal came to be seized are taken out Under the circumstances, though it is quite true that Public Analyst Report (Exh. 17) does contain an opinion that the muddamal was found to be 'Charas', still however, there is indeed nothing on the basis of which the sample analysed could be connected with the sample seized and sealed from accused, This vital gap in the evidence of Public Analyst, that of P.S.I. Nathani and. the accused, totally remains unbridged and when, that is the position available, it is not permitted to any Court to record conviction of the accused. In this view of the matter, since the prosecution has failed to connect the accused with the crime alleged against him, we have no alternative left with us but to acquit the accused. (Para 5)

       Result: Appeal allowed. Order of connection set aside. Observations made regarding the process of investigation and the duties of police in such serious offences under the Narcotic Act.