Non-production of seized contraband during trial proved fatal to prosecution's case, resulting in acquittal.

1. Feeling aggrieved by the judgment of conviction and order of sentence dated 11th October, 2004 passed by the Special Judge, Vidisha in Special Criminal Case No.51/2004 (State of M.P. v. Jaheed Khan) convicting the appellant / accused under S.20 (b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') and sentenced him to suffer ten years rigorous imprisonment with fine of Rs.10,000/-, in default additional rigorous imprisonment for one year, the appellant has preferred this appeal, under S.374 of the Code of

2. The background facts of the case, in brief, are that Town Inspector, A.K. Dubey, Officer - in - Charge, Police Station, Kotwali, Vidisha (P.W.4) received on telephone a secret information on 16.04.2004 at 21.45 pm that the accused, Jahed Khan resident of Baksariya used to sell ganja. He by carrying ganja going to his residence at Baksariya. On receipt of such information, A.K. Dubey, Officer - in - Charge called two independent witnesses, Mohan Babu Sharma (P.W.2) and Dinesh (P.W.3) who were just passing through Police Station and informed them about the secret information and prepared necessary panchnama (Exhibit P - 1). A.K. Dubey, Town Inspector has also informed the City Superintendent of Police, Vidisha accordingly vide Exhibit P - 12, thereafter organized a raid party alongwith the police officials and independent witnesses, Mohan Babu Sharma (P.W.2) and Dinesh (P.W.3). On reaching the place of occurrence, Jahed Khan was seen near the kalari tiraha with a bag in his hand. On inquiry, the accused disclosed his name as Jahed Khan. The secret information was then disclosed to him and he was given option to be searched in the presence of a Gazetted Officer or Magistrate. He, however, declined the offer. Thereafter, the search was carried out and a bag which was carried out by him ganja was found. On weighing it was found to be 5.00 Kgs. Then, the same was recovered from the possession of the accused and necessary panchnama was prepared. Two samples, each of 50 grams were taken from the aforesaid substance and sealed. The accused was arrested and he alongwith the seized recovered article and samples were taken to the Police Station. The samples were sent to for chemical examination. After chemical analysis, the seized article from the possession of the appellant was found to be ganja.

3. After due investigation, charge - sheet was filed. The learned Trial Judge on the basis of the material placed on record framed the charge punishable under S.8 (c) / 20(b)(ii) B of the Act against the accused. The appellant / accused pleaded not guilty to the charge levelled against him and claimed to be tried.

4. To bring home the charge, the prosecution examined as many as six witnesses and placed Exhibits P - 1 to P - 22, the documents on record. None has been examined by the accused in his defence.

5. Learned Trial Judge on the basis of the evidence placed on record came to hold that charge under S.20 (b)(ii) B of the Act has been proved against the accused as a result of which convicted him and passed the sentence as mentioned here - in - above.

6. In this manner, this appeal has been preferred by the appellant / convicted accused assailing the judgment of conviction and order of sentence passed by the learned Trial

7. Shri Sameer Kumar Shrivastava, learned counsel for the appellant argued at length and submitted that the appellant was convicted illegally while he has not committed any offence. It is further submitted that 5 Kgs. ganja contained in a bag alleged to have been seized from the possession of the a