The central legal point established in the judgment is the requirement for the prosecution to prove the safe custody of seized material under Section 55 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and the impact of discrepancies and unexplained gaps in evidence on the prosecution's case.

JUDGMENT :

Present Government Appeal has been filed against the judgment dated 06.07.2004, passed by learned Ist FTC/Additional Sessions Judge, Haridwar in Special Criminal Case No.16 of 2001, “State vs. Mahfooj”, by which, the respondent – accused has been acquitted of the charge under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘‘Act, 1985”).

2. The prosecution case, briefly stated, is that on 26.06.2001, Sub-Inspector Gyanendra Singh Rana (PW1), Sub-Inspector Rajendra Kumar Tyagi (PW2) and Head Constable Sahab Singh (PW3) were present on patrolling duty. They received a secret information that a person is going towards Arya Nagar carrying poppy straw in his bag. In spite of an endeavour, no public witness could be secured. Accordingly, a raid was conducted. Respondent – accused was apprehended. On enquiry, he disclosed his name and address. He informed them that he had poppy straw in his bag. They apprised him that they intend to search him and whether he wishes to be searched in the presence of a Gazette Officer or a Magistrate. He gave his consent for being searched before them. Accordingly, a search was conducted. During the search of his bag, they found 4 kg. 500 grams of poppy straw (Material Ext.3) in his blue colored polythene bag (Material Ext.2). He was arrested at 11:15 a.m. The recovered contraband was sealed. The said contraband was taken into possession vide Recovery Memo (Ext. Ka1). An FIR (Ext. Ka.2) was lodged by Gyanendra Singh Rana (PW1). The said contraband was sent to the Chemical Examiner, who found the same to be “poppy straw”. Charge-sheet was submitted after completion of the investigation.

3. Charge under Section 8/15 of the Act, 1985 was framed. Accused pleaded not guilty and claimed to be tried.

4. At the trial, the prosecution examined four witnesses.

5. (PW1) Gyanendra Singh Rana, (PW2) Rajendra Kumar Tyagi and (PW3) Sahab Singh were members of the raiding party. (PW4) Sub-Inspector Dev Raj Singh Rathi is Investigating Officer.

6. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, 1973. He denied all the incriminating evidence, produced by the prosecution.

7. Accused did not adduce any defence evidence.

8. Learned Trial Court heard arguments of both the parties, appreciated the evidence and passed the impugned judgment, by which, respondent – accused has been acquitted.

9. Mr. S.S. Adhikari, learned Deputy Advocate General for the State, argued that in order to prove its case, prosecution examined four witnesses and they have supported the prosecution case. Respondent denied the prosecution case and has stated that he has been falsely implicated, but, he did not produce any evidence in his defence. Therefore, learned Trial Court has committed manifest error in disbelieving the evidence of the prosecution’s witnesses.

10. On the other hand, Mr. Sajjad Ahmed, Advocate appearing for the respondent, has supported the impugned judgment.

11. As per the Table prepared in terms of Section 2(xxiii-a) and Section 2(vii-a) of the Act, 1985, 1,000 grams of poppy straw is small quantity and greater than 50 kg. of poppy straw is commercial quantity (Entry No.110). Therefore, according to the prosecution, the recovered poppy straw was non-commercial.

12. The onus is on the prosecution to prove that the seized material was in safe custody. The prosecution must prove that the seized material before being sent to the laboratory for testing was kept in safe custody.

13. Section 55 of the Act, 1985 deals with the procedure to be followed by Officer-in-Charge of a police station. According to the said provision, an Officer-in-Charge of the police station shall take charge for safe custody of articles seized under the Act and shall allow the officer bringing such articles to affix his seal to such articles and the Officer-in-Charge shall also seal the articles with his own seal. Therefore, the sealing process should be according to the provisions of S