IMPORTANT POINT
Seizure of Ganja – FSL report cannot be considered as primary evidence and in absence of primary evidence, trial gets vitiated.

JUDGMENT

These two appeals under Sections 374(2) of Cr.P.C arise out of judgment and order of conviction and sentence dated 29.09.2022 passed by the Court of the II Additional District and Sessions Judge, Bidar sitting at Basavakalyan in Special Case No.312/2021 and therefore the appeals are heard together and disposed of by this common judgment.

2. Heard the learned counsel for the parties.

3. It is the case of the prosecution that on 19.02.2019 at about 9.45 a.m., near Gate-I of Humnabad Bus Stand within the limits of Humnabad Police Station, accused Nos.1 and 2 were found illegally transporting the contraband article – ganja, which totally weighed 30 kilogram. The accused were apprehended and from their possession ganja weighing 30 kilograms was seized and subjected to panchanama. Thereafter, the seized contraband article and the apprehended accused were brought to the police station and FIR in Crime No.24/2019 was registered. After investigation, charge-sheet was filed against accused Nos.1 and 2 for the offences punishable under Sections 20(b)(ii), 20(B) and 20(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘NDPS Act’ for brevity).

4. The Trial Court after taking cognizance of the charge-sheeted offences had framed charges against accused, read over and explained the same to the accused. Since the accused pleaded not guilty and claimed to be tried, the prosecution in order to prove its charges against the accused had examined eight charge-sheet witnesses as PW.1 to PW.8, got marked 11 documents as Ex.P.1 to Ex.P.11 and 17 material objects were got marked as MO-1 to MO-17. After the prosecution completed its side of evidence, the Trial Court had recorded the statement of the accused under Section 313 of Cr.P.C. However, no defence evidence was led on behalf of accused, but one document was marked as Ex.D1 on behalf of defendant. The Trial Court thereafter heard the arguments addressed on both sides and vide impugned judgment and order, convicted accused Nos.1 and 2 for the offences punishable under Sections Sections 20(b)(ii), 20(B) and 20(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced them to undergo rigorous imprisonment for a period of 10 years and pay fine of ‘20,000/- each and in default to undergo simple imprisonment for a further period five months. Being aggrieved by the said judgment and order of conviction and sentence passed by the Trial Court, the accused Nos.1 and 2 are in appeal.

5. Learned counsel for the appellants submits that the Trial Court has erred in convicting the appellants for the alleged offences. He submits that there is a delay in sending the contraband article seized to the Forensic Science Laboratory for chemical examination. Therefore, the chances of tampering with the contraband article cannot be ruled out. He submits that the Forensic Science Laboratory Officer who has issued report as per Ex.P.10 is not examined by the prosecution. He also submits that there is no compliance of Section 52A of the NDPS Act in the present case and therefore the Trial Court was not justified in convicting the appellants.

6. Per contra, learned High Court Government Pleader for respondent/State has argued in support of the impugned judgment and order of conviction and sentence. He submits that even though PW.2 and PW.3 who are the panch witnesses have not supported the case of the prosecution, the charges have been proved against the appellants beyond reasonable doubt by the prosecution on the basis of the oral and documentary evidence available on record. He submits that all the official witnesses have supported the case of the prosecution and there is no reason to disbelieve their evidence. He submits that sample drug has tested positive and Ex.P10 report from FSL clearly demonstrates the same. Accordingly, he prays to dismiss the appeals.

7. FIR in Crime No.24/2019 was registered by the Humnabad Police Station, Bidar against the a