IMPORTANT POINT
When recovered contraband drug was not produced during trial and panch witnesses turned hostile and Investigating Officer was not examined, conviction under NDPS Act could not be sustained.

JUDGMENT

Srikrishna, J.-These two appeals by special leave are directed against a common judgment of the Madhya Pradesh High Court rendered in Criminal Appeal No. 411/2000 and Criminal Appeal No. 414/2000 convicting the appellants herein, Jitendra s/o Vijay Narayan @ Virendra Raghuwanshi and Smt. Sheela @ Chandrawati, under the Narcotic Drugs and Psychotropic Substances Act, 1985.

2. According to the prosecution case, Inspector Rajendra Pathak (PW7) of Police Station, Datia, received secret information at 5 p.m. on 12th August, 1999 that in front of the house of one Rampyari Bilganiya her tenant was standing with a scooter without number plate and was likely to transport charas and opium. S.D.O.(P) Angad Singh (PW8) was present at the police station when this information was received. A constable was sent to call two independent witnesses Sandeep (PW2) and Mukesh (PW3). The police party thereafter left for the house of Rampyari at 5.30 p.m. According to the prosecution s version, accused Jitendra (Appellant in appeal No. 411/2000) was standing in front of the house of Rampyari along with a scooter. On a request by the Police Officer that he may be permitted to search the dicky of the scooter, and after being apprised that the search may be given either to the Police Officer present or to the Magistrate, the accused Jitendra agreed that the search may be taken by the Police Officer. The Police Officer opened the dicky with a key supplied by Jitendra. This search resulted in recovery of five packets of charas in a polythene bag along with currency notes worth Rs. 20,000/-. The charas weighed one kilogram out of which two samples of 100 grams each were taken out and sealed. Thereafter, the police party accompanied by a lady constable Pushpa (PW5), who was called from the police station, entered the house of Smt. Sheela @ Chandrawati, accused Jitendra s mother. The house of Smt. Sheela was searched and one kilogram of ganja was recovered from the house. That was seized by a seizure memo. Two samples of 200 grams were taken out and sealed as per the panchanama. The samples were sent to the Forensic Science Laboratory, Sagar for chemical examination. The Chemical Examiner opined that the samples were charas and ganja respectively. The accused were charged with offences under Section 8 read with Section 18 and Section 8 read with Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS, Act ). The Special Judge after trial acquitted both the accused of the charge under Section 8 read with Section 18 but convicted the accused Jitendra and Sheela for offences under Section 20 (b) of the NDPS, Act. After a hearing on the question of punishment, appellant Jitendra was sentenced to rigorous imprisonment for 10 ten years and fine of Rs. one lakh and in default to a further sentence of two years rigorous imprisonment. The Appellant Sheela @ Chandrawati was sentenced to rigorous imprisonment for three years with a fine of Rs. 5000/- and in default to a further term of rigorous imprisonment of six months.

3. Both the convicted accused appealed to the High Court. The High Court maintained the convictions and sentence imposed upon Jitendra and dismissed his appeal. As far as Smt. Sheela was concerned, the High Court reduced the sentence of imprisonment to the period undergone in custody, which was about 14 months, and reduced the fine to Rs. 2,000/- by partly allowing her appeal.

4. The learned counsel for the appellants strongly urged that the High Court has completely missed the crucial issue that was urged on behalf of the accused. He pointed out that this was a strange case where the material objects viz. one kilogram charas alleged to have been seized from the custody of Jitendra, and one kilogram ganja alleged to have been seized from the possession of Jitendra s mother, accused Sheela, were not at all produced at the trial. Though it was the case of the prosecution that the recovered ar