Point of Law : Seizure - In a matter pertaining to seizure of contraband under the NDPS Act, the most crucial element is the question of seizure. The seizure has to be proved by the State beyond all reasonable doubt.

JUDGMENT :

The case of the prosecution is that on 24.02.2016, a police party headed by SI/SHO Dharam Sain Negi alongwith Head Constable Ram Lal and Constables Ajay and Suresh left the Police Station, Kotkhai around 6.00 P.M. for regular patrol and traffic work. At about 7.50 P.M., the police party was at Hulli. They found a person carrying a bag in his right hand, coming from Hulli-Ghund-Dasana road. On seeing the police, he turned back and started running. On suspicion, he was apprehended. On inquiry, he stated his name as Budhi Ram S/o late Shri Ram Dass Sharma. That he was a resident of village Kothadi. He was carrying a bag on which was printed the name ‘Mohsen’. The bag was checked. It contained sticks and round shape black substances. The smell was that of charas. Independent witnesses, namely, Shri Rakesh Kumar, salesmen in the country liquor vend at Hulli and Shri Mohamad Akhter of village Ghunda, were joined in the investigation. The carry bag was taken to a nearby shop M/s Kimta General Store, which belonged to one Mohd. Iqbal. The substance was weighed. It was 2.522 kgs. The same was put into the carry bag and parceled in separate cloth with 12 different seals on it. All other formalities were completed.

2. An FIR was lodged against the accused for the offence punishable under Section 20 of the NDPS Act. Investigation was taken up. Thereafter the case was committed for trial. Charges were framed against the accused. He pleaded innocence and claimed to be tried. In order to prove its case, the prosecution in all examined nine witnesses and the defence examined one witness. The prosecution relied on Ext.PW1/A to Ext. PW7/G. On trial, the accused was convicted for the offence punishable under Section 20 of the NDPS Act. He was sentenced to undergo rigorous imprisonment for a period of 10 years alongwith fine of Rs. 1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year. Aggrieved by the same, the accused has filed this appeal.

3. Mr. Manoj Pathak, the learned counsel for the appellant contends that the order passed by the trial Court is erroneous. That the trial Court failed to consider the discrepancies in the case of the prosecution. That the prosecution has miserably failed to bring home the guilt of the accused. That the witnesses of the prosecution have turned hostile. That the trial court cannot rely solely on the evidence of the prosecution witnesses to bring home the guilt of the accused. That independent witnesses are required to be examined. The seizure has not been proved. That there is a discrepancy with regard to the status of PW-1. The claim of the prosecution is that PW-1 is a driver of the jeep is not supported by any evidence on record. It is further pleaded that in terms of the evidence of DW-1, the accused is innocent of the offence alleged against him. There was an altercation that took place in the beer bar. That the altercation was between the police and the accused. That as a consequence whereof, the police have wreaked vengeance on him and have falsely implicated the accused. That the accused is innocent of the offences alleged against him. Hence, it is pleaded that the appeal be allowed by acquitting the accused.

4. The same is disputed by Ms. Seema Sharma, the learned Deputy Advocate General appearing for the respondent/State. She contends that the prosecution has proved its case beyond all reasonable doubt. That sufficient evidence has been led in to establish the recovery of the contraband from the accused. That the discrepancies sought to be made out by the appellant with regard to the status of PW-1, is belittled by the evidence of PW-6. PW-6 is the constable Dimple Chankrola, who maintained the police diary at the police station. Based on her evidence, Ext.PW6/A and Ext.PW6/B would indicate the presence of PW-1. Therefore, the contention of the appellant cannot be accepted. That so far as the evidence of DW-1 (Shyam Lal) is concerned, t