Point of Law: The amount of contraband, recovered from the respondent, cannot be held more than that which was sent to Chemical Analyst and was affirmed by the Forensic Science Laboratory as a contraband.

JUDGMENT :

Satyen Vaidya, J.

By way of instant appeal, judgment dated 26.11.2014 passed by learned Special Judge-II, Mandi, District Mandi, H.P. in Sessions Trial No. 9 of 2013 along with sentence order dated 16.12.2014 have been assailed by the appellant, whereby he has been convicted for offence under Sections 20 of the NDPS Act and has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. one lakh and in default to undergo simple imprisonment for a period of one year.

2. The brief facts of the case are that Narcotics Control Bureau, Sub Zone Mandi (for short NCB) registered Crime No. 35 of 2012 dated 19.12.2012. As per NCB case, on 19.12.2012, PW-5 Karamvir Singh, Intelligence Officer received secret information regarding commission of offence under the NDPS Act. A raiding party was constituted. PW-2 R. L. Negi, Intelligence Officer besides other officials of NCB and independent witnesses Narain Singh and Jia Lal were associated. A Naka was laid at Katindi Road Mandi at about 6.45 a.m. Two persons including the appellant were found coming from Katindi side at about 7.20 a.m. 1 kg 300 grams of charas was recovered from the bag carried by the appellant. Recovered contraband was seized vide recovery-cum-seizure memo Ext. PW-2/A. Panchnama Ext. PW2/B was also prepared. Appellant along with his co-accused named Raj Kumar were arrested. Two samples weighing 25 grams each were drawn and were sent for chemical analysis to Central Revenue Control Laboratory, Delhi. One of the sample was tested as positive for charas vide report Ext. PW1/A.

3. On completion of investigation, challan was prepared. Appellant along with his co-accused were tried in Sessions Trial No. 9 of 2013 and were convicted. Appellant was sentenced as noticed above. Co-accused Raj Kumar is stated to have died.

4. We have heard learned counsel for the parties and have also gone through the record carefully.

5. Prosecution examined PW-2 R.L. Negi, Intelligence Officer and PW-5 Karamvir Singh, Intelligence Officer as spot witnesses. In addition, Jia Lal the alleged independent witness was also examined as PW-3.

6. PW-1 Sh. V. K. Sharma, Chemical Examiner proved report Ext. PW1/A. Sh. S. K. Singh, Deputy Superintendent of CBI was examined as PW-6, who deposed to have received information under Section 42 of the NDPS Act.

7. Sh. Bimal Gupta, learned senior counsel representing the appellant at the very outset contended that the samples sent for chemical analysis were not the representative samples. In absence of sample being representative, the entire quantity allegedly recovered by NCB could not be said to be charas.

8. Recovery-cum-seizure memo Ext. PW2/A reveals that the recovered 1 kg 300 grams charas was found in “indigenous finger shape”.

9. PW-2 stated on oath that during search, one polythene bag was recovered, which was containing finger shape dark brown substance. The substance was weighed and found 1 kg 300 grams. Two samples of 25 grams each were separated from the recovered charas. In cross-examination, this witness stated that the sample was taken randomly.

10. PW-5 also deposed almost in same terms. According to him, during search one polythene bag was recovered which contained finger shaped brown substance, packed in a transparent polythene cover. The recovered substance was weighed. Two samples of 25 grams each were separated from the recovered charas and were separately sealed. In cross-examination, PW-5 stated that he had not counted the sticks of contraband.

11. PW-3, the alleged independent witness did not support the case of prosecution and was declared hostile. According to this witness, no proceedings were held in his presence and he was called to the NCB Office where his signatures were obtained on papers. Nothing material could be elicited from his cross-examination.

12. The material on record thus suggested that the substance recovered from the appellant was in the shape of fingers/small sticks. Neither PW-3 nor PW-5, have