1. Convicted under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( NDPSA for short) for possession of 14.140 Kgs of Heroin Powder and sentenced to ten years rigorous imprisonment and a fine of rupees one lac, Sher Singh alias Shera has appealed to this Court seeking setting aside his conviction and sentence recorded by learned Principal Sessions Judge, Jammu, hereinafter to be referred as the Trial Court.

Prosecution Case

2. Prosecution case, in brief, is that an ambush was laid on 11.01.1996 by Station House Officer, Police Station Domana, at Keran Ban Talab, in view of an information that some persons would be carrying Heroin to Jammu via Keran Bantalab. At about 5 a.m., three persons with bags on their shoulders were asked to halt at the barrier. Two persons taking advantage of the darkness succeeded in giving a slip to the police, whereas appellant was apprehended alongwith his bag, which on search was found to contain fifteen packets of Heroin powder besides an amount of rupees two hundred. F.I.R. No. 04 of 1996, thus, came to be registered under Section 21 of Narcotic Drugs and Psychotropic Substances Act, 1985. A charge-sheet under Section 173 of the Code of Criminal Procedure was produced against the appellant in the Trial Court.

Proceedings before the Trial Court.

3. Appellant was charged under Section 21 of the NDPSA on 24.05.1996. Prosecution examined fifteen witnesses in support of its case, whereas appellant-accused examined Balwant Singh and Ram Singh who supported his plea of denial.

Besides assembling testimony of Jagdish Lal Sharma-SDPO, Surinder Singh- ASP, Ashok Singh-PSI, S. M. Sahai- SSP, Mukhtiar Hussain- Constable, Ashok Singh-SGC, Kewal Singh-Constable, Kamal Kumar-Constable, Balbir Singh-SGC, Harbhajan Singh-Constable, Rattan Singh-Head Constable, Abdul Hussain-Constable, Ghulam Nabi Malik- Naib Tehsildar, Ashok singh-Constable and Shamsher Singh Parihar- Inspector/SHO, the Public Prosecutor tendered in evidence Report No. 93/FSL/96 dated 27.02.1996 of Scientific Assistant, Forensic Science Laboratory, Jammu.

The Trial Court discussed the prosecution evidence and the pleas raised on behalf of the appellant as to the violation of Sections 42 and 50 of the NDPSA and finally came to the conclusion that the prosecution had succeeded in proving that the appellant-accused was found in possession of 14.140 Kgs of Heroin powder. It, accordingly, recorded conviction under Section 21 of NDPSA and sentenced the appellant to undergo rigorous imprisonment for a term of ten years and to a fine of rupees one lac.

Submissions On behalf of appellant.

4. Sh. Devki Nandan, learned counsel for the appellant, has made only two submissions in support of the appeal. These submissions are; (i) the prosecution had failed to produce any admissible evidence on the basis whereof it could be said that appellant was found in possession of any quantity of Heroin powder; and (ii) Incriminating circumstances allegedly appearing in evidence against the appellant had not been put to him for his explanation. This omission was, thus, fatal to the prosecution case.

On behalf of respondent

5. Mrs. Aruna Thakur, learned Govt. Advocate, referred to State of Punjab v. Naib Din reported as (2001) 8 Supreme Court Cases 578, to urge that omission to put formal evidence to the appellant would not affect his conviction. She further urged that as no objection had been raised by the appellant as to the admission of Report No. 93/FSL/96 dated 27.02.1996 of Scientific Assistant, FSL, Jammu, in evidence during the trial of the case, so he could not raise any such objection in appeal.

6. I have considered the submissions of learned counsel for the parties and gone through the records.

7. The prosecution has not led any evidence to prove that the powder seized from the possession of the appellant was Heroin powder except relying upon Report No. 93/FSL/96 dated 27.02.1996 of Scientific Assistant, FSL, Jammu, which certifies the seized powder a

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