Delhi High Court
Vedio Prasad Yadav vs The State Of Nct Of Delhi on 23 August, 2017
Author: Sangita Dhingra Sehgal
Bench: Sangita Dhingra Sehgal
$~R-1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 254/2011
% Judgment reserved on 12th July, 2017
Judgment pronounced on 23rd August, 2017
VEDIO PRASAD YADAV ..... Appellant
Through : Ms. Rakhi Dubey, Advocate.
Versus
THE STATE OF NCT OF DELHI ..... Respondent
Through : Mr. Mukesh Kumar, APP for the State.
CORAM:
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL, J.
1. The present appeal has been instituted under Section 374(2) of the Code of Criminal Procedure against the impugned judgment dated 24.07.2010 and order on sentence dated 31.07.2010 whereby the appellant has been convicted for the offence punishable under Section 20(c) of the Narcotic Drugs and Psychotropic Substances Act,1985 (hereinafter referred to as „NDPS‟) and sentenced to undergo rigorous imprisonment for a period of 10 years with fine of Rs. 1 Lac for the said offence, in default of payment of fine further undergo rigorous imprisonment for a period of one year.
2. The case of the prosecution as observed by the Special Judge, NDPS is that:
"(a) On 11.08.2009 HC Satyender and Ct. Amit were patrolling in the area and at about 05:05 am while patrolling when they reached at VikasMarg near Bus CRL.A. 254/2011 Page 1 of 18 Stand Delhi Sachivalaya, they saw two boys, identified as the accused and the co-offender/juvenile, sitting on two separate big plastic bags while one third boy was standing nearby. On suspicion the boys were asked to disclose the contents of the big bags and they informed the policemen that these bags contained some flowers used for preparation of medicines. The policemen looked at the bags closely and from the smell they suspected that the bags contained "Ganja".
Thus at about 05:15 am HC Satyender Kumar sent the information to the duty officer of PS I. P. Estate and requested him to send some police official. During this time the boy who was standing, managed to slip away from the spot.
(b)After sometime ASI Manbir Singh reached at the spot alongwith Ct. Surender and was apprised about the circumstances by HC Satyender. ASI Manbir Singh requested 5-6 passersby to join the proceedings but none agreed and thereafter he gave separate Notices under Section 50 of the NDPS Act to the accused and the juvenile and told them that he has received information that heavy quantity of "Ganja" has been found in their possession and there was likelihood of more such substance in their possession for which their search was required. ASI Manbir Singh also informed them that it was their legal right and if they desired their search could be conducted in the presence of a Gazetted Officer or a Magistrate. Accused and the juvenile did not want to avail this offer, they were searched and no drug or narcotic substance was recovered from their person. The two plastic bags recovered from their possession were checked and each bag was found containing 08 packets of "Ganja" in vegetative form, wrapped in brown paper and plastic panni. Total weight of "Ganja" in the 08 packets recovered from the bag in possession of accused Vedio Prasad Yadav was found to be 53 kilograms and total weight of "Ganja" in the CRL.A. 254/2011 Page 2 of 18 08 packets recovered from the bag in possession of the juvenile/co-offender was found to be 52 Kilograms. 01 Kilogram "Ganja" was taken out as sample from each bags and made into separate pulandas. The remaining "Ganja" was kept as it is in the respective bags. The red panni sheets, dark brown papers alongwith jute cord (sutli), which were used to make packets of "Ganja" were kept in a separate yellow coloured plastic bag. The bag containing "Ganja", recovered from the possession of accused Vedio Prasad Yadav was given Serial No. A and corresponding sample pulanda was given Serial No. A-1. "Ganja" bag recovered from the possession of juvenile was given Serial No. B and corresponding sample pulanda was given Serial No. B-1. The plastic bag containing panni, brown paper and sutli was given Mark C. FSL form was filled at the spot and all the pulandas were sealed with the seal of 'MS'. The same seal was also affixed at form FSL and seal after use was handed over to HC Satyender..."
3. To bring home the guilt of the appellant, the prosecution in all examined 10 witnesses. Statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure wherein he denied allegations of possessing a bag or recovery of any article therefrom. According to him, he was waiting at bus stop to board the bus but was falsely implicated. No defence evidence was led by the appellant.
4. Ms. RakhiDubey, learned counsel for the appellant contended that neither contraband was recovered from his possession nor he had any concern with the same; that it is he was not in possession of any contraband and it is well settled that unless the prosecution proves beyond reasonable doubt that the accused was in conscious possession of the recovered contraband he cannot be convicted for possession of such CRL.A. 254/2011 Page 3 of 18 contraband; that the appellant had no concern with the said plastic bag and was just standing at the bus stop waiting to board the bus and he was falsely implicated in the case;that the alleged occurrence took place at a public place, but no independent witness was joined by the Investigating Officer and only police officials conducted the search and therefore, non- joining of any independent witness at the alleged place of recovery is itself sufficient to raise an adverse inference against the case of the prosecution; that the weight of the contraband was measured by the manual weighing machine with the help of „Taraju‟ and „Baat‟ which has been admitted by the statement of PW2; that sample of 1 kg was taken, however, the sample which reached the CFSL was1.8 kg, thus the discrepancy in the weight of the contraband shows that the same has been tampered with; that as per the definition of „Ganja‟ the seeds and leaves of the same are to be excluded and thus from the discrepancies in the weight of samples as also the exclusion of seeds, it is clear that the prosecution has not established its case beyond reasonable doubt ; that the appellant has not been involved in any other case and has clear antecedent; that the appellant belongs to a poor family and has already undergone more than 8 years of imprisonment wherein his jail record was found satisfactory and thus the appellant deserves to be acquitted.
5. To substantiate her arguments on discrepancy in weight samples sent to FSL and recovery of contraband, the learned counsel relied upon the judgment of Raj NandanSahniVs State: 2015 (3) JCC (Narcotics) 141, Lavlesh Kumar Vs State: 2015 (4) JCC (Narcotics) 239, Sajivan Rao Vs. State of NCT of Delhi : 2017 II AD(Delhi) 705to show that the definition of ganja excludes leaves and seeds when not accompanied by CRL.A. 254/2011 Page 4 of 18 fruit tops and argued that the alleged recovery of Ganja in the present case was intermediate.
6. Per contra, Mr. Mukesh Kumar, learned APP for the State contended that "Ganja" was recovered from the possession of the appellant which stood confirms from the FSL report the presence of the contraband; that the quantity recovered from the appellant amounts to commercial quantity and thus the Trial Court has rightly awarded minimum sentence i.e. ten years to the appellant which is prescribed under the Act and the same does not call for any interference.
7. I have heard learned counsel for the parties and have also perused the material available on record.
8. At this stage, it is relevant to examine the testimonies of members of the raiding party beingPW-3 Constable Surender, PW-6 HC Satyender Kumar, PW-2 ASI Manbir, PW10 Ct. Amit Kumar.
9. PW3 Constable Surender testified as under:
"On 11.8.2009 I was posted at PS IP Estate. On that day I was on emergency duty. On that day ASI Manbir Received DD No. 8-B about that two boys were apprehended at vikasmarg near bus stand Yamuna pul along with psychotropic substance like ganja. DD No. 8A is Ex. PW-2/A. I alongwith ASI Manbir reached at spot.One Constable and one HC were already present with their govt. motorcycle OMNI with two boys. Today I do not remember the name of the constable and HC. The police officials produced two plastic kattas containing the ganja recovered from the boys. I interrogated with both the boys and they told their names vedio Prasad yadav and Bali Ram kumar. I identified accused Video Prasad Yadav present in the court today where as Bali Barn Kumar (Juvenile) is not present in the court today (Witness CRL.A. 254/2011 Page 5 of 18 has correctly identified accused Video Prasad present in the court). The police officials told me that both the boys were apprehended while sitting on the separate plastic kattas of Ganja where as the third boy ran away from the spot. (Objected to). I asked 05-06 passersby to join the investigation but they refused and went away without disclosing their name and addresses."
xxxxxxxx "ASI Manbir Singh checked that plastic katta.
The Katta was found containing Ganja in 08 packets of polythene wrapped in paper and tied with the jute chord (sutli).
The other bag recovered from Juvenile Bali Ram was also checked. The Katta was found containing Ganja in 08 packets of polythene wrapped in paper and tied with the jute chord (sutli). ASI sent HC who was already present there on govt.
motorcycle for bringing the physical weighing machine and weight (Taraju and baat) and plastic bag. He brought the same after sometime.
The 08 Ganja packets recovered from the plastic katta in possession of accused Vedio Prasad were opened and their contents/Ganja was mixed and weighed with the help of taraju and baat)."
10. PW6 HC Satyender Kumar testified as under:
"On 11.08.2009, I was posted at PS I P Estate. On that day, I was on duty with Ct. Amit on Government Motorcycle Omini DL-1 SN 5612 and we were patrolling the area at about 05:05 am in the morning. When we reached at VikasMarg near bus stand of Sachivalya we saw that two boys were sitting there on separate plastic while colour big bag and one boy was also standing there. On suspicion we reached near them and I asked about the contents of those while colour big bag. The boys told us that the bags containing some flowers used for the preparation for CRL.A. 254/2011 Page 6 of 18 medicines. When I came near the bag I felt smell of some psychotropic substance. I felt that there may be Ganja then I informed at about 5:15 am to the duty officer of PS I P Estate and I requested officer to send some Police officials from the PS when I informed to PS in the meantime one boy who was standing there run away from the spot.
After some time ASI Manbir and Ct. Surender reached at the spot.
We produced two plastic Kattas containing the Ganja 'recovered from the boys and custody of both the boys were handed over to IO ASI Manbir. He interrogated both the boys and they told their names as Video Prasad Yadav and Bali Ram Kumar.
xxxxxx I told to IO by pointing out towards a plastic katta that it was the same on which accused Video Prasad was sitting. IO checked that plastic katta. The Katta was found containing Ganja in 08packets of polythene wrapped in paper and tied with the jute chord (sutli).
The other bag recovered from Juvenile Bali Ram was also checked. The Katta was found containing Ganja in 08 packets of polythene wrapped in paper and tied with the jute chord (sutli).
IO sent me for bringing the physical weighing machine and weight (Taraju and baat) and plastic bag. I brought the same after sometime.
The 08 Ganja packets recovered from the plastic katta in possession of accused Video Prasad were opened and their contents/Ganja was mixed and weighed with the help of taraju and baat. The total weight of Ganja came as 53 Kg. The 08 Ganja packets recovered from the plastic katta in possession of accused Bali Ram were opened and their contents/Ganja was mixed and weighed with the help of taraju and baat. The total weight of Ganja came as 52 Kg. IO took out 01 kg of Ganja as sample from the CRL.A. 254/2011 Page 7 of 18 total quantity of Ganja recovered from each plastic katta and put them into separate plastic bags. The sample Ganjas and the recovered Ganja were made into separate pulandas. The pulanda of sample taken out from the Ganja in possession of accused Video Prasad was given Serial No. A-1. The pulanda of sample taken out from the Ganja in possession of accused Bali Ram was given Serial No. B 1. The pulanda of remaining Ganja recovered from the possession of accused Video Prasad was given Serial no. A and the pulanda of remaining Ganja recovered from the possession of accused Bali Ram was given Serial no. B. The sutli, papers and polythene used for making packets were put in one pulanda and was given serial no. C. Form FSL was filled at the spot. All the 05 pulandas were sealed with the seal of 'MS'. The seal impression was also put on the FSL Form."
11. PW 2 ASI Manbir Singh testified as under:
"On 11.8.2009 I was posted at PS IP Estate. On that day I received DD No. 8-A about that two boys were apprehended at VikasMarg near Bus Stand Yamuna Pul along with Psychotropic substance like Ganja. DD No. 8-A is Ex. PW-2/A. I along with constable Surender reached at the spot. Constable Amit, HC Satenderwere already present with their govt. motorcycle with two boys. The police officials produced two plastic Kattas containing the Ganja recovered from the boys. I interrogated both the boys and they told their names as Video Prasad Yadav and Bali Ram Kumar. I identified accused Video present in the court today where as Bali Ram Kumar Juvenile is not present in the court today. (Witness has correctly identified accused Video Prasad present in the court). The police officials told me that both the boys were apprehended while sitting on the separate plastic kattas of Ganja where as the third boy ran away from the spot. (Objected to). I asked 05-06 passersby to join CRL.A. 254/2011 Page 8 of 18 the investigation but they refused and went away without disclosing their names and addresses. I prepared notice u/s 50 NDPS Act against accused Video Prasad Yadav and Bali Ram Kumar (Juvenile) and a copy was served. I explained the contents of the notice to both the accused persons and told them that it is their right to call any Gazetted Officeror Magistrate for taking their personal search and that they can also search the members of the police party prior to their search. They refused to call any Magistrate or Gazetted Officer. Juvenile Bali Ram wrote his refusal himself but since accused Video Prasad was illiterate and unable to write the refusal, I recorded his refusal on the carbon copy of the notice u/s 50 NDPS Act and explained. Accused Video Prasad then signed on his refusal. HC Satender told me by pointing out towards a plastic katta that it was the same on which accused Video Prasad was was sitting. (Objected to). I checked that plastic katta.The katta was found containing Ganja in 08 packets of polythene wrapped in paper and tied with the jute chord (sutli).
The other bag recovered from Juvenile Bali Ram was also checked. The Katta was found containing Ganja in 08 packets of polythene wrapped in paper and tied with the jute chord (sutli).
I sent HC Satender for bringing the physical weighing machine and weight (Taraju and baat) and plastic bag. He brought the same after sometime.
The 08 Ganja packets recovered from the plastic katta in possession of accused Video Prasad were opened and their contents/Ganja was mixed and weighed with the help of taraju and baat. The total weight of Ganja came as 53 Kg. The 08 Ganja packets recovered from the plastic katta in possession of accused Bali Ram were opened and their contents/Ganja was mixed and weighed with the help CRL.A. 254/2011 Page 9 of 18 of taraju and baat. The total weight of Ganja was came as 52 kg.
"
12. PW10 Ct. Amit Kumar testified as under:
"On 11.08.2009, I was posted at PS I P Estate as Constable. On that day, I was on duty with HC Satyender on Government Motorcycle Omini DL-1 SN 5612 and we were patrolling the area at about 5:05 am in the morning. I was driving the motorcycle and HC Satyender was a pillion rider. When we reached at VikarMarg near bus stand of Delhi Sachivalya we saw that two boys were sitting there on separate plastic white colour big bags and one boy was also standing there. On suspicion we stopped the motorcycle and reached near them and we asked about the contents of those white colour big bag. The boys told us that the bags containing some flowers used for the preparation for medicines. When I came near the bag I felt smell of Ganja. Then HC Satyender informed at about 5:15 am to the duty officer of PS I P Estate and requested duty officer to send some Police officials from the PS. We apprehended both the persons who were sitting on the bags and when HC Satyender was informing to PS the third boy who was standing there run away from the spot. After some time ASI Manbir and Ct. Surender reached at the spot.
We produced two plastic Kattas containing the Ganja recovered from the boys and custody of both the boys were handed over to IO ASI Manbir. ASI Manbir interrogated both the boys and they told their names as Video Prasad Yadav and Bali Ram Kumar.
IO checked a plastic katta the same on which accused Video Prasad was sitting. On checking the said Katta it was found containing Ganja in 08 packets of polythene wrapped in paper and tied with the jute chord (sutli).
The other bag recovered from Juvenile Bali Ram was also checked. The Katta was found CRL.A. 254/2011 Page 10 of 18 containing Ganja in 08 packets of polythene wrapped in paper and tied with the jute chord (sutli).
IO sent HC Satyender for bringing the physical weighing machine and weights (Taraju and baat) and plastic bag. He brought the same after sometime.
The 08 Ganja packets recovered from the plastic katta in possession of accused Video Prasad were opened and their contents/Ganja was mixed and weighed with the help of taraju and baat. The total weight of Ganja came as 53 Kg. The 08 Ganja packets recovered from the plastic katta in possession of accused Bali Ram were opened and their contents/Ganja was mixed and weighed with the help of taraju and baat. The total weight of Ganja came as 52 Kg.
13. It is pertinent to scrutinize the FSL report to determine what the bags actually contained, which reads as under :
"DESCRIPTION OF ARTICLES CONTAINED IN THE PARCEL(S)/ EXHIBIT (S) Parcels-„A1‟ „B1‟ :Two (02) plastic bags (katta), each sealed with seals of „M.G‟ (01)&‟MS‟ (01). These were found to contain exhibits „A1‟ &‟B1‟.
Exhibits-„A1‟ &„B1‟:Each greenish brown coloured vegetative material stated to be „Ganja‟, weight approx. 1.8 kg & 1.6 kg with plastic bag respectively.
RESULTS OF EXAMINATION
(i) The sample(s) „A1‟ & „B1‟ were examined by
chemical tests, chromatography and
instrumental methods.
(ii) On physical examination, the exhibit(s) 'A1' & 'B1' gave characteristic odour of cannabis.CRL.A. 254/2011 Page 11 of 18
(iv) Chemical test and chromatographic analysis gave positive resultsfor cannabinoids including Tetrahydrocannabinol in exhibits 'A1' & 'B1'.
(v) Biological examination report in original is also in closed."
14. A careful analysis of the above consistent testimonies of the prosecution witnesses shows that on 11.08.2009 the police officials were patrollingin the area at about 5:05 am.and when they reached Vikas Marg near the bus stand of Delhi Sachivalya, they saw two boys sitting there on separate plastic white colour big bags and one boy was standing there. On suspicion, they stopped their motorcycle and asked them about the contents of the big bags. The boys told them that the bags contained some flowers which are used for the preparation of medicines. When they came near the bag they felt they could smell Ganja.The officials produced the two plastic Kattas containing the Ganja recovered from the boys and custody of both the boys were handed over to IO ASI Manbir. ASI Manbir interrogated both the boys and they disclosed their names as Video Prasad Yadav and Bali Ram Kumar. The third boy managed to flee from the spot. On checking the said Katta on which the appellant was sitting, it was found containing Ganja in 08 packets of polythene wrapped in paper and tied with the jute chord (sutli). The 08 Ganja packets recovered from the plastic katta in possession of accused Video Prasad were opened and their contents/Ganja was mixed and weighed with the help of „Taraju‟ and „Baat‟. The total weight of Ganja measured 53Kg. The samples were forwarded to the Forensic Science Laboratory (FSL) for examination and expert opinion. The FSL opined that the substance which had been sent as sample "A 1"& "B1" contained cannabinoids CRL.A. 254/2011 Page 12 of 18 including Tetrahydrocannabinol (Ganja) in the exhibits.
15. Returning to the arguments advanced by the counsel, it was contended by the counsel for the appellant that the appellant was not in possession of any contraband and that he had no concern with the said plastic bag. He further stated that he was standing at the bus stop waiting for the bus. It is trite that to bring the appellant within the ambit of Section 20 of the Act, the possession has to be conscious possession. However, the initial burden of proof of possession lies on the prosecution and once the same has been discharged, the burden would shift on the accused. Once possession is established by the prosecution, the Court can presume that the accused had the necessary culpable mental state and has committed the offence.
16. In State of Punjab Vs. Hari Singh and Ors. reported in AIR 2009 SC 1966, the Apex Court observed as under:
"11. Section 15 makes possession of contraband articles an offence. Section 15 appears in chapter IV of the act which relates to offence for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession. Section 15 deals with punishment for contravention in relation to poppy straw.
12. It is highlighted that unless the possession was coupled with requisite mental element, i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 15 is not attracted.
13. The expression 'possession' is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Superintendent &Remembrancer of Legal Affairs, West CRL.A. 254/2011 Page 13 of 18 Bengal v. Anil Kumar Bhunja and Ors.: 1979CriLJ1390 , to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the context of all statutes.
14. The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended.
15. As noted in Gunwantlal v. The State of M.P.:
1972CriLJ1187 possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in question, while the persons whom physical possession is given holds it subject to that power or control.
16. The word 'possession' means the legal right to possession (See Health v. Drown (1972) (2) All ER 561 (HL). In an interesting case it was observed that where a person keeps his fire arm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness 1976 (1) All ER 844 (QBD).
17. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. This position was highlighted in MadanLal and Anr. v. State of Himachal Pradesh:
2003CriLJ3868..
17. In the factual scenario of the present case, on suspicion, the boys were asked to disclose the contents of the big bags and they informed the CRL.A. 254/2011 Page 14 of 18 policemen that these bags contained some flowers used for preparation of medicines. Had they not been in possession of the bags they would have stated that the bags did not belong to them instead of stating that the bags contained flowers. This implies that the appellant was in possession of the bag. It was only on checking the bags that the police officials found the bags infact contained "Ganja" and not flowers used for preparation of medicines. Moreover, perusal of the testimonies ofprosecution witnesses goes to show that statements of all the witnesses have adequately corroborated and are consistent on the same lines indicating that the appellant was in consciouspossession of the bags containing "Ganja".
18. The contention of the learned counsel for the appellant that no public witness had joined though all the prosecution witnesses admitted that the place of incident was a public place cannot be accepted in view of the judgment in Ajmer Singh vs. State of Haryanareported in2010 (2) SCR 785 which reads:
"16. The learned Counsel for the appellant has submitted that the evidence of the official witness cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned Counsel. It is clear from the testimony of the prosecution witnesses PW-3 Paramjit Singh Ahalwat, D.S.P., Pehowa, PW-4 Raja Ram, Head Constable and PW-5 Maya Ram, which is on record, that efforts were made by the investigating party to include independent witness at the time of recovery, but none was willing. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and fine. In this situation, it is normally expected that there should be independent CRL.A. 254/2011 Page 15 of 18 evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence. In the present case, both the trial court and the High Court by applying recognized principle of evaluation of evidence of witnesses has rightly come to the conclusion that the appellant was arrested and Charas was recovered from the possession of the appellant for which he had no licence. We find no good reason to differ from that finding."
19. The mere fact of non-joining of a public witness, would not ipso- facto make the evidence of the police witnesses unreliable or untrustworthy. Additionally,it has come on record that the police officials had asked 05-06 passersby‟s to join the investigation but they refused and went away without disclosing their identities.In the instant case, an opportunity wasoffered to the public but nobody was ready to join the proceedings, thus, no fault can be attributed to the investigation.
CRL.A. 254/2011 Page 16 of 1820. Learned counsel for the appellant contended that the weight of the contraband was measured by the manual weighing machine with the help of „Taraju‟ and „Baat‟. She further stated that a sample of 1 kg was taken however the sample which reached the CFSL was 1.8 kg, thus the discrepancy in the weight of the contraband shows that the same has been tampered with.Record shows that the 08 Ganja packets recovered from the plastic katta in possession of the appellant were opened and their contents/Ganja was mixed and weighed with the help of „Taraju‟ and „Baat‟. The total weight of Ganja came as 53 Kg. The sample „Ganja‟ and the recovered „Ganja‟ were made into separate pulandas. The pulanda of sample taken out from the „Ganja‟ in possession of appellant was given Serial No. A-1. As far as discrepancy of weight is concerned, the same is not material one but a minor discrepancy, for which no benefit can be granted to the appellant. Commercial quantity of opium was recovered from the possession of the appellant.This discrepancy is not going to help the appellant as in the instant case the samples were weighed with the help of „Tarazu‟ and „Baat‟ whereas the same were weighed with electronic weighing machine in the FSL, which may cause the variation in the weighing scale. The sample drawn from the contraband, was duly sealed by the Investigating Officer after following the procedure as adopted by the police and the same was intact till it was received by the FSL which can be confirmed from the FSL report. Hence, there was no likely of tampering with the sample sent to the FSL and variation in the weight, cannot be said to be fatal to the case of the prosecution.
CRL.A. 254/2011 Page 17 of 1821. In view of the abovementioned facts and settled law, the impugned judgment of the Special Judge for imposition of minimum punishment prescribed under Section 20(c) of 10 years rigorous imprisonment together with a fine of Rs. 1 lakh cannot be interfered with. I find no merit in the appeal and the same is liable to be dismissed.
22. Consequently, the appeal is hereby dismissed.
23. The appellant be informed through the Superintendent Jail.Trial Court record be returned forthwith along with a copy of this judgment.
SANGITA DHINGRA SEHGAL, J.
AUGUST 23, 2017 gr// CRL.A. 254/2011 Page 18 of 18