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2005(2) JLJ 363
A.K. Shrivastava, J.
Abdul Gani v. State of M.P.
Criminal Appeals No. 105 and 109 of 1998 : against the judgment of
Sessions Judge, Mandsaur, passed in Special Case No.2 of 1997;
Decided on 16.3.2005.
The case of prosecution is that police station incharge A.K. Mishra stopped the motorcycle which was being driven by accused Raees, on which accused Abdul Gani was a pillion rider. The station Officer-in-charge A.K. Mishra stopped the motorcycle as he was informed by the informant that somebody is carrying brown sugar on a motorcycle. According to the prosecution, accused Abdul Gani was holding a box in which a plastic bag was kept which was containing brown sugar. A notice under section 50 of the Act was given and from the bulk, two samples of contraband article of 20 gms. each were taken out and sealed and were sent to chemical examiner. [Para 2
The trial Court, after scanning the evidence, came to hold that appellants did commit the offence of which they were charged and eventually convicted them. [Para 6
Learned counsel has contended that the contraband article which was alleged to have been seized from the possession of appellant Abdul Gani was not brought before the Court and, therefore, no offence is proved. [Para 10
Held: The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchanama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence under the NDPS, Act. 2004(1) EFR 22 (SC) followed. [Para 14
(2) Evidence Act, 1872--S.114--Narcotic Drugs and Psychotropic Substances Act, 1985 -- S. 8/21 -- samples of contraband article sent to two laboratories -- report of one laboratory not filed -- adverse inference drawn under S. 114 of 1872 Act. [Para 16
(3) Narcotic Drugs and Psychotropic Substances Act, 1985--S.50-- contraband article seized earlier to notice case becomes heavily doubtful. [Para 17
(4) Narcotic Drugs and Psychotropic Substances Act, 1985--S. 8/21 -- offence under -- conscious possession over contraband article not proved -- accused simply driving motor cycle -- cannot be convicted. 2004(2) EFR 416 (SC) followed. [Para 18
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1. These two appeals are preferred by two accused persons jointly who were tried in Special Case No. 2/97 by Sessions Judge, Mandsaur. The accused persons are convicted for 10 years' RI each and fine Rs. 1 lac each, in default, further RI of two years RI each for the offence under section 8/21 of the Narcotic Drugs and Psychotropic Substances Act (in short 'the Act').
2. In brief, the case of prosecution is that police station incharge A.K. Mishra stopped the motorcycle which was being driven by accused Raees, on which accused Abdul Gani was a pillion rider. The station Officer-in-charge A.K. Mishra stopped the motorcycle as he, was informed by the informant that somebody is carrying brown sugar on a motorcycle. According to the prosecution, accused Abdul Gani was holding a box in which a plastic bag was kept which was containing brown sugar. A notice under section 50 of the Act was given and from the bulk, two samples of contraband article of 20 gms. each were taken out and sealed and were sent to chemical examiner. Since the presence of brown sugar was found in the sample, accused persons were charge-sheeted and were tried.
3. The trial Court, on going through the charge-sheet, framed charge punishable under section 8/21 of the Act which the accused persons denied.
4. In order to prove the charges, prosecution examined as many as 8 witnesses and placed certain documents on record.
5. The defence of accused persons is of maladroit implication, however, in support of their defence they did not choose to examine' any witness.
6. The trial Court, after scanning the evidence, came to hold that appellants did commit the offence of which they were charged and eventually convicted them and passed the sentence which I have mentioned hereinabove. Hence this appeal.
7. It has been contended by Shri Z.A. Khan, Senior Advocate and Shri Sanjay Sharma, learned counsel for accused persons, that there is non-compliance of section 50 of the Act and if that is the position, no conviction could be accorded against them.
8. Per contra, learned Government Advocate has contended that the case of prosecution is that appellant Raees was driving the motorcycle and appellant Abdul Gani was possessing the contraband article in his hand in one container in which a plastic bag was kept and in that bag the contraband article brown sugar was there.
9. According to the learned Government Advocate, since the container was being carried by Abdul Gani, there was no necessity of any compliance of section 50 of the Act. Learned counsel submits that this point has been referred to larger Bench by the apex Court.
10. Facing this tight situation, Shri Z.A. Khan, learned Senior Advocate for appellant Abdul Gani, has submitted that apart from the non-compliance of section 50 of the Act, if the entire case is considered in proper perspective, it would be difficult to uphold the conviction and it is difficult to hold that appellants committed any offence. Learned counsel has contended that the contraband article which was alleged to have been seized from the possession of appellant Abdul Gani was not brought before the Court and, therefore, no offence is proved. Learned counsel has placed heavy reliance on the decision of apex Court in the case of Jitendra and another v. State of M.P. [2004(1) EFR 22]. Apart from this, it has also been contended by learned counsel that it has come in the evidence that two samples were sent to different chemical laboratories. First sample was sent at FSL Indore and another at Neemuch. It has been proponed by learned counsel for appellant Abdul Gani that the report of FSL, Neemuch, was produced, however, what happened to first report which was sent to FSL, Indore, which has not been produced, there is' no explanation to it. According to learned counsel since the report did not confirm the presence of brown sugar, for this reason the same was not produced in the Court. Learned counsel Shri Khan has further invited my attention to sectin 50
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