The prosecution must prove the case beyond reasonable doubt, and failure to produce substantial evidence can lead to the case being set aside.

Being aggrieved by the judgment dated 16.7.2009 passed by Special Judge (NDPS Act), Rajgarh (Biora) in Special Case No. 06/2004, whereby the appellant was convicted for an offence punishable under Section 8/18 of NDPS Act with imprisonment of three years and fine of Rs. 20,000/-, the present appeal has been filed.

2. In short case of the prosecution was that on 11.10.2004 Shri VS. Sapre, Station Officer, Police Station, Biora received secret information to the effect that on by pass road, Biora appellant is selling wine illegally. Upon this information Station Officer of the concerned police station went on spot and found the appellant in possession of wine which was being sold by him illegally. It was alleged that upon search of the Hotel contraband article was also found, which was kept in back room of the Hotel. The appellant was found in possession of 17 Kg. of Poppy Straw, out of which sample was taken, sample as well as seized article were sealed properly, necessary panchnama was prepared, returned back to the police station, informed the Superior Officers, deposited the sealed packet as well as packet of contraband article for safe custody and registered the FIR. Thereafter the sealed packet was sent for chemical examination to the Forensic Science Laboratory, from where report was received wherein seized article was found to be Poppy Straw, after investigation charge-sheet was filed.

3. Appellant abjured the guilt and his defence was of false implication in the case. Learned Trial Court after appreciation of entire evidence on record, held the appellant/accused guilty for the offence punishable under Section 8/18 of NDPS Act and sentenced him as stated hereinabove, aggrieved by which the appellant preferred the appeal.

4. Learned Counsel for the appellant argued at length and submits that appellant was convicted illegally while appellant has not committed any offence. Learned Counsel submits that the learned Courts below committed error in not properly appreciating the evidence which resulted incorrect judgment and is liable to be set aside in this appeal. It is submitted that the learned Court below committed error in not considering that material omissions and contradictions appearing in the testimony of the prosecution witnesses. It is submitted that in view of the aforesaid facts the appeal filed by the appellant deserves to be allowed and the judgment of conviction deserves to be set aside.

5. In alternative learned Counsel submits that appellant was in jail w.e.f. 11.10.2004 and was released on bail vide order dated 14.12.2004. Appellant was again in jail w.e.f. 16.7.2009. It is submitted that since the jail sentence was below three years, therefore, learned Trial Court was duty bound to suspend the jail sentence after conviction but the application in that regard was dismissed. It is submitted that looking to the nature of offence and the fact that appellant has already served substantive part of jail sentence, the same may be reduced to the period already undergone and the amount of fine may reasonably be enhanced.

6. Learned Counsel for the respondent/State submits that after due appreciation of evidence, learned Court below has found the offence proved against the appellant, which requires no interference. It is submitted that the appeal filed by the appellant be dismissed.

7. From perusal of the record, it is evident that to prove the case the prosecution has filed the documents which as marked as Exh, P-1 to Exh. P-19. Apart from this prosecution has also examined Tejkaran (P.W. 1), Hokamchand (P.W. 2), Ashok Parihar (P.W. 3), Mahesh (P.W. 4), B.L. Sahu (P.W. 5), Leelashankar Bhati (P.W. 6), Head Constable, Kesar Rajpoot (P.W. 7), N.P. Dangi (P.W. 8), Motilal (P.W. 9), Kesar Singh (P.W. 10), Alok Kumar Singh (P.W. 11) and Prakash (P.W. 12). Exh. P-17 is the FSL report. In chemical examination it was found that the contraband substance was poppy straw. Learned counsel for the appellant submits that as pe