Allahabad High Court
Jitendra Singh Rathore vs State Of U.P. on 8 January, 2014
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. 53. Judgment Reserved on 3.12.2013 Judgment Delivered on 8.01.2014 Crl. Appeal No. 4509 of 2006. Jitendra Singh Rathore .... Appellant. Versus State of U.P. .... Opposite party. Hon'ble Ramesh Sinha, J.
1. The present appeal has been preferred against the judgment and order dated 7.8.2006 passed by Additional District and Session Judge, Court No.8, Kanpur Dehat in Session Trial No. 164 of 1999 convicting and sentencing the appellant under Section 20-b (ii) (C) to undergo 15 years rigorous imprisonment with a fine of Rs. 1,00,000/- and in default of payment of fine to further undergo additional imprisonment of three years.
2. The prosecution case in brief is that on 4.8.1999, the informant M.P. Singh was on patrol duty along with other police personnel in Jeep No. U.P.-77 6474 and Gypsi No. U.P.-77 6557 to maintain law and order. When they reached at Akbarpur Inter College, they received a secret information by an Informer that one person is sitting at about 50 paces from a Mazar at Rura Road and he was sitting with a bundle of white bag in which there is contraband article, i.e., Charas. On receiving the said information, the patrolling party proceeded towards the said direction along with the said Informer. On reaching the said place, the informer pointed out towards the said person and left the Jeep. Thereafter the patrolling party stopped the said person at 13:30 p.m. and made an interrogation from him on which he told his name to be Jitendra Singh Rathore son of Lal Singh Rathore resident of Balrampur, police station Mangalpur, District Kanpur Dehat. The patrolling party informed the appellant that they have got an information that he is carrying some contraband article in his bag and if he wishes he may be searched before the nearest Magistrate or Gazetted police officer on which the appellant stated that when he has been arrested by them there is no need to go anywhere and they may take a search of him. On which the informant prepared a memo under Section 50 of the Narcotics Drug and Psychotropic Substance Act (hereinafter referred to as 'the Act') and also got the signature of the appellant on the said memo and thereafter his search was made by the police officers.
3. On search, it was found that the appellant was carrying 29 packets of contraband article, i.e., Charas kept in a white bag. The appellant was taken into custody and an F.I.R. was lodged on the same day at about 15:10 hrs. at police station Akbarpur in district Kanpur Dehat as Case Crime No. 487 of 1999 under Section 18/20 of the Act which is marked as Ex. Ka-4. The fact about registration of the F.I.R. was also endorsed in G.D. No. 30, a carbon copy of which was marked as Ex. Ka-5. The Investigating Officer prepared a site plan which was marked as Ex. Ka-6. The sample was taken from the recovered contraband article under the orders of the Court and sent for chemical analysis to Forensic Science Laboratory, Lucknow. The report of the Forensic Science Laboratory, Lucknow was received and marked as Ex. Ka-7. The Investigating Officer on the basis of the evidence collected during investigation, i.e., the recovered article which is marked as Ex. Ka-1 and the memo prepared under Section 50 of the Act marked as Ex. Ka. 2 submitted a charge-sheet against the appellant in the court which was marked as Ex. Ka.8.
4. The trial court framed charges against the appellant for the offence under Sections 18/20 Act which was denied by him and claimed for being tried by the Court.
5. The prosecution in support of its case examined five prosecution witnesses such as P.W.-1 Inspector/Station Officer Narsingh Pal, P.W. 2 Sub Inspector Gajendra Singh, P.W. 3 Constable Amar Singh, P.W. 4 H.C.P. Daulat Ram and P.W. 5 Sub Inspector Ratan Singh, the Investigating Officer of the case.
6. The statement of the appellant was recorded under Section 313 Cr.P.C. in which he denied the prosecution story and has stated that the witnesses have falsely deposed against him. He stated that in the mid night of 3/4.8.1999, police personnel of Akbarpur police station had forcibly taken him from his house situated at village Balrampur Singhal. He further stated that on 4.8.1999, his father Lal Singh has sent a letter through fax to the National Human Rights Commission, New Delhi informing about the harassment and arrest of the appellant. In defence, the appellant has filed a copy of the said letter which was marked as Ex. 57 Kha. The appellant has also got examined his father Lal Singh as D.W.1 before the trial court.
7. P.W.1 Inspector/Station Officer Narsingh Pal has reiterated the prosecution story in his statement before the trial court as has been narrated by him in the F.I.R. He has stated that he has got the said F.I.R./recovery memo prepared by S.I. Brahmanand and has further deposed that the contraband article recovered from the possession of the appellant was sealed in a bag and also prepared the Namoona Vastu marked as Ex.ka-1 which was prepared in his writing and under his signature. He also proved and identified the recovery memo (Namoona Vastu) Ex.Ka-1. He further stated that he also got a consent memo (memo of search) Ex. Ka. 2 written by S.I. Brahmanand which was signed by the appellant and also got prepared a recovery memo by S.I. Brahmanand which is marked as Ex. Ka. 3. The appellant was also informed about the reason of his arrest and thereafter his family members were also informed about his arrest. The appellant along with the recovered article was taken to the police station where the F.I.R. of the present case was lodged.
8. P.W. 2, S.I. Gajendra Singh, who was a member of the raiding party was examined by the trial court, has also reiterated the prosecution story as has been stated in the F.I.R. as well as by P.W.1 Narsingh Pal.
9. P.W.3 Constable Amar Singh, has deposed that on 24.8.1999, he was posted at police station Akbarpur. He took the sample of the recovered article from the Investigating Officer Ratan Singh and has produced the same before the court and under the order's of the Court he got prepared a docket and took the article and other papers to Forensic Science Laboratory Lucknow in a sealed condition.
10. P.W. 4 H.C.P. Daulat Ram has proved the F.I.R. of the incident and has stated that the same has been written in his writing and he has signed the same which has been marked as Ex. Ka-4. He has also endorsed the F.I.R. in G.D. No. 30 which was produced in carbon copy as Ex. Ka-5.
11. P.W.5 S.I. Ratan Singh, who was the Investigating Officer of the case has stated that he was entrusted with the investigation on 4.8.1999. He prepared the site plan and has proved the same as Ex. Ka-6. He further stated that on 23.8.1999 with the permission of the Court he has handed over the sample of the contraband article to Constable Amar Singh for being taken to Forensic Science Laboratory Lucknow. He has taken the sample in a sealed condition from the Malkhana to the court which was taken by Constable Amar Singh. After investigation, he submitted a charge-sheet against the appellant which was marked as Ex. Ka-8 and proved by him.
12. Heard Sri Angipal Singh assisted by Ms. Pratima Singh and Sri Achal Singh Vats, learned counsel for the appellant and Sri R.K. Maurya, learned A.G.A. for the State.
13. Learned counsel for the appellant urged that admittedly as per the prosecution case no weight of the contraband article was taken by the police party and it was only the basis of the statement of the appellant that the said article is 25 kgs. Charas it was believed to be 25 kgs. which was sealed by P.W.1 Narsingh Pal on the spot and no sample of the contraband article was taken on the spot by P.W. 1. The said article was deposited by P.W.1 at the Malkhana of the concerned police station and entrusted the same to Head Moharir of the said police station, i.e., P.W. 4 Daulat Ram. He has drawn the attention of the court towards the statement of P.W.-1 Inspector M.P. Singh, whose statement was recorded on 11.10.2002 which is quoted hereinbelow:-
"Bramad Maal wa Namoona Maal sarv mohar halat me Nyayalay me maujud hai jise Nyayalaya ke samaksh khola gya"
14. He has further drawn the attention of the court towards the cross examination of P.W.1 on 24.12.2003 which is quoted hereinbelow:-
"Jab mujhe mukhbiri hui thi, maine wireless dwara ucch adhikariyon ko suchna nahi di thi. Is prakar sahwan 42 NDPS Act ka paripalan nahi ho saka. Mauke par maine charas ko taula nahi tha.
Charas bramad kar thana Akbarpur ke tatkaleen Head Moharir ko saop diya tha jinhon ne malkhane me rakha hoga".
15. He submitted that as per the statement of P.W..1, it is clear that the mandatory provisions of Sections 42 of the N.D.P.S. has not been complied with at all, hence the said recovery becomes doubtful and the finding recorded by the trial court on this aspect of the matter is against the established preposition of law, hence the judgment and order passed by the trial court be set aside and the appellant be acquitted . In support of his submission, he has also drawn the attention of the court towards deposition of S.I. Gajendra Singh, who was examined as P.W. 2 which is quoted hereinbelow:-
"Mukhbir se suchna milte samay police party mai driver ke 12 logon ki thi. Wireless saath me tha. Mukhbir se suchna milne ke baad is sochna ko lekhbadh nahi kiya gya hai aur na hi wireless se thane ko koi suchna di gayi aur na hi kisi ucch adhikari ko suchna di gayi".
16. On the basis of the said evidence of P.W. 1 and P.W. 2, it was argued that where the police officer does not record the information at all and does not inform the higher officials at all about the recovery of the contraband article amounts to violation of Section 42 of the N.D.P.S. Act. In support of his submission, he has placed reliance on the judgment of the Apex Court towards para-12 of the judgment of Kishan Chand vs. State of Haryana reported in LAWS (SC)-2012-12-55 which is quoted hereinbelow:-
"12. In our considered view, this controversy is no more res integra and stands answered by a Constitution Bench judgment of this Court in the case of Karnail Singh (supra). In that judgment, the court in the very opening paragraph noticed that in the case of Abdul Rasid Ibrahim Mansuri vs. State of Gujrat [(2000) 2 SCC 513], a three Judge Bench of the Court had held that compliance of Section 42 of the Act is mandatory and failure to take down the information in writing and sending the report forthwith to the immediate officer superior may cause prejudice to the accused. However, in the case of Sajan Abraham (supra), again a Bench of three Judges, held that this provision is not mandatory and substantial compliance was sufficient. The Court noticed, if there is total non-compliance of the provisions of Section 42 of the Act, it would adversely affect the prosecution case and to that extent, it is mandatory. But, if there is delay, whether it was undue or whether the same was explained or not, will be a question of fact in each case. The Court in paragraph-35 of the judgment held as under:-
35. In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of Sections 42 (1) and 42 (2) nor did Sajan Abraham hold that the requirements of Section 42 (1) and 42 (2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The Officer on receiving the information[ of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42 (1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per Clauses (a) to (d) of Section 42 (1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Section 42 (1) and 42 (2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance with requirements of Sub-Sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay delay may result in the accused escaping or the goods or evidence being destroyed or removed not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information ws received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstances being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.
Following the above judgment, a Bench of this Court in the case of Rajinder Singh (supra) took the view that total non-compliance of the provisions of sub-sections (1) and (2) of Section 42 of the Act is impermissible but delayed compliance with a satisfactory explanation for delay can, however, be countenanced. "
17. It was then urged by learned counsel for the appellant that no signature were obtained by the P.W. 1 and 2 on the bag which was containing the contraband article recovered from the possession of the appellant and in this respect, he has drawn the attention of the Court towards the cross examination recorded by the trial court of P.W.2 Gajendra Singh which is quoted hereinbelow:-
"Jo maal hum logon ne bramad kiya tha, wah bori me mere samne hai. Bori par jo likha gya tha wah siyahi se likha tha wah mit chuka hai. Bori par mulzim ke koi hastakshar nahi banwaye gaye the."
18. On the basis of the said statement, it has been submitted that the provisions of Section 57 of the N.D.P.S. Act has not been complied with and it is stated that the daily report was also not produced by the prosecution before the trial court to show the compliance of Section 57 of the Act and the finding recorded by the trial court regarding compliance of Section 57 of the Act is also bad in the eyes of law, hence the same should be set aside by this Court.
19. The next submission of learned counsel for the appellant is that it has been stated by P.W.1 that after the arrest of the appellant he has sealed the article recovered from him and deposit the same in Malkhana of police station Akbarpur and further entrusted the same to P.W. 4 Daulat Ram Head Moharir of the concerned police station. The attention of the Court was drawn towards the cross examination of P.W.4 Daulat Ram recorded by the trial court on 4.10.2004 which is quoted hereinbelow:-
"Daroga ji mulzim ke sath 25 kilo charas laye the. Maine isko sarv mohar halat me apni abhiraksha me liya tha aur usko malkhane me apni abhiraksha me rakha. Is maal me jo mohar lagi thi wah inspector sahab ke naam ki thi, pad ki thi athva thane ki thi. Ye mujhe yaad nhi hai. Mohar ko to maine dekha tha. Mohar kiski thi mujhe is samay dhyan nhi thi. Teen mahine tak maine uprokt maal ke apni abhiraksha me rakha tha."
20. It was submitted that in view of the above statement of P.W.4, it is evident that the contraband article remained in the custody of Malkhana Incharge for a period of three months, hence the contraband article which was produced before the C.J.M. on 23.8.1999 was not the same as it was in the custody of Malkhana on that day thus it creates doubt whether the same article was produced before the C.J.M. or not. He has submitted that in view of Section 58 of the Evidence Act no fact need to be proved in any proceedings which the parties thereto or their agents agree to admit at the time of hearing. It was submitted that as per Section 57 of the Act it required that whenever any person makes any arrest or seizure, he shall within 48 hours next after such arrest or seizure make a full report of all the particulars to his immediate official superior. He submitted that in the absence of any such material before the trial court that provisions of Section 57 of the Act was complied with, the alleged recovery of contraband article becomes doubtful. In support of his argument, he has placed reliance on the judgment of this Court in the case of Lala Ram vs. State of U.P. reported in 2004 (Suppl) A.C.C. 300 which is based on the judgment of the Apex Court in the case of Gurbux Singh vs. State of Haryana reported in 2001 (42) ACC 476 (SC).
21. It was further argued by learned counsel for the appellant that admittedly, the prosecution has also not produced the Malkhana register of police station Akbarpur where the contraband article was stated to be deposited by P.W.1 and also P.W.4 had admitted that the same was entrusted to him and he kept the same in the Malkhana which also casts doubt about that whether the article which recovered from the possession of the appellant was produced before the court which was later on sent to the chemical analyst. In this respect he has placed reliance on the judgment of the Apex Court in the case of Valsala vs. State of Kerala reported in AIR 1994 SC 117 wherein it has been held that in the absence of evidence to show that during the long period between the seizure and production in court, the seized article was in the custody of the Officer-in-Charge of police station and that the same was kept under seal, it was doubtful whether the very article that was seized was sent to the Chemical Examiner. Reliance was also placed on the judgment of the Apex Court in the case of State of Orissa vs. Sitansu Shekhar Kanungo reported in JT 2002 (8) SC 292 wherein it was held that non production of the Malkhana register being one of the vital missing links, the other factors highlighted above coupled with the non-production of the malkhana register have given a fatality to the prosecution case. Thus it was submitted that the non production of Malkhana register would go to show that whether the recovered contraband article in question was in a safe custody of Malkhana In-charge, hence there was gross violation of Section 55 of the Act. He has also placed reliance on the judgment of the Apex Court in the case of State of Rajasthan vs. Gurmail Singh reported in [ 2005 (51) ACC 928] wherein it was held that non production of the Malkhana register seizing the contraband article proves to be fatal to the prosecution case and conviction of the accused cannot be sustained.
22. It was then argued that no sample was taken on the spot nor any signature or thumb impression was taken on the sample recovered which also creates doubt about the recovery of contraband article from the appellant as from the F.I.R. itself as well as from evidence on record it is not clear whether any sample was taken on the spot. In support of his submission, he has placed reliance on the judgment of the Apex Court in the case of Kuldeep Singh vs. State of Punjab reported in AIR 2011 SC (Supp.) 787 in which it has been held by the Apex Court that non collection of samples at the initial stage of seizure was a defect, which could not have been cured in the manner in which it was done by opening the bags which had been sealed by the I.O. and mixing the contents thereof. In support of his submission he has also placed reliance on the judgment of this Court in the case of Mathura Prasad vs. State of U.P. reported in [2005 (51) ACC 904] and another judgment of this Court in the case of Beni Prasad vs. State of U.P. reported in [2003 (46) ACC 701] wherein it was stated that the samples of charas, alleged to have been recovered/seized from the possession of the appellant, is alleged to have taken and sealed on the place of occurrence but surprisingly enough the sealed packets does not bear the signature of the accused appellant which casts doubt about the alleged recovery.
23. Per contra, the learned A.G.A. has vehemently opposed the arguments advanced by learned counsel for the appellant and has submitted that the judgment of the trial court convicting and sentencing the appellant is based on sufficient evidence against him and the prosecution has proved its case beyond reasonable doubt against the appellant, hence his conviction should be sustained and the appeal lacks merit and it should be dismissed. He further submitted that so far as the compliance of Section 42 of the N.D.P.S. is concerned, admittedly arrest and seizure of the appellant was from a public place, hence no question arisen for compliance of Section 42 of the Act and the finding recorded by the trial court on the same is absolutely justified, hence the contention of the learned counsel for the appellant that the mandatory provisions of Section 42 was not complied with by the raiding party is not tenable. Similarly he has also submitted that the provisions of Section 57 has been complied with and the trial court is also recorded finding with respect to the same which should not be interfered by this Court.
24. Considered the submissions advanced by learned counsel for the parties.
25. The first submission of learned counsel for the appellant that from the evidence of P.W.1 and 2, it is evident that admittedly the appellant was arrested by the raiding party with contraband article though was arrested from a public place but they were having a wireless set with them but they did not make any effort even to partially comply with the mandatory provisions of Section 42 of Act appears to be correct as from the evidence of the P.W. 1 and P.W. 2 it is apparent that they had admitted before the trial court in their evidence that they did not inform the superior officers about the arrest of the appellant with contraband article nor they even tried to incorporate the same in the G.D. of the concerned police station when they had reached with the appellant along with the recovered article at the concerned police station. The instant case appears to be a case of totally non compliance of the mandatory provisions of Section 42 of the Act. As per the various pronouncements of the Apex Court and the case which have been cited by the learned counsel for the appellant, i.e., Kishan Chand (supra), the Apex Court has held there may cases for partial compliance of Section 42 of the Act and where if that is done by the raiding party then the arrest and seizure would not vitiate the prosecution case but if there has been total non compliance of the provisions of Section 42 (1) and (2) of the Act may prove a fatal to the prosecution case. Thus from the evidence of the present case, it is evident that there has been total non compliance of the provisions of Section 42 of the Act which was impermissible and to show that Section 42 of the Act was not applicable in the present case and the finding recorded by the trial in this respect does not appears to be reasonable, hence the contention of the learned counsel for the appellant finds force that there has been complete non compliance of mandatory provisions of Section 42 of the Act which renders the arrest and recovery of contraband article from the appellant to be doubtful.
26. The next submission of learned counsel for the appellant that Malkhana register was not produced by the prosecution before the trial court which is also evident from the statement of P.W.4, who was entrusted with the contraband article recovered from the possession of the appellant on 4.8.1999 and the same was deposited to him by P.W. 1 also appears to be correct which is borne out from the record, as it has come in the evidence of P.W.1 that he has entrusted the recovered article to P.W.4, who might have kept the same in the Malkhana of the concerned police station. P.W. 4 has also admitted that the said contraband article was in his custody for about three months but he did not produced the Malkhana register before the trial court to corroborate the prosecution case regarding recovery of the seized article from the possession of the appellant. From the record it further appears that on 4.8.1999, the said contraband article was recovered and deposited in the Malkhana by P.W. 1 and on 23.8.1999, the said contraband article was produced before the C.J.M., Kanpur Dehat, i.e., after 19 days of the alleged recovery. On 25.8.1999, the said sample was taken from S.I. Ratan Singh P.W. 5 the Investigating Officer and given to P.W. 3 Amar Singh for being taken to chemical analyst for analysis and on the other hand P.W. 4 has stated that for three months, the said contraband article was lying in his custody. Under these circumstances, it creates doubt whether the contraband article which was produced before the C.J.M. on 23.8.1999 was the same which was in the custody of P.W. 4 or not, hence the contention of learned counsel for the appellant that Section 55 of the Act has not been complied with and non production of the Malkhana register before the court proves fatal to the prosecution case which vitiates the recovery of contraband for the appellant. The Apex Court in the case of the Valasala vs. State of Haryana(Supra) has held that when there is no evidence to show that the article which was sealed or kept in the custody and sent after such a long delay for chemical analysis become highly doubtful, hence the conviction of the appellant cannot be sustained. In this context there is yet another judgment of the Apex Court in the case of State of Rajasthan vs. Tara Singh reported in 2011 (11) SCC 559 wherein it was held in a prosecution relating to the NDPS Act, the question as to how and where the samples had been stored or as to whom they had been dispatched or received in the laboratory is a matter of great importance on account of the huge penalty involved in these matters. Thus on that count also the conviction of the appellant by the trial court is not sustainable in the eyes of law.
27. The contention of learned counsel for the appellant that no sample of the contraband article was taken at the spot nor any signature or thumb impression has taken on the same also appears to be correct as it is apparent from the record that P.W.1 had recovered the article and the arrested the appellant without taking out the sample of contraband article on the spot and had deposited the same in the Malkhana of the concerned police station and entrusted the same to the P.W.4, therefore, it is not proved in what manner the sample was drawn by the police party. From the record it is further evident that the alleged sample did not bear any signature or thumb impression of the appellant and the offence under the N.D.P.S. Act is a technical offence and the safeguard in the enactment requires strict compliance. Failure, in the evidence by the prosecution witnesses, to show that when the sample were taken from the same contraband article creates doubt on the authenticity of the prosecution case. In this connection the absence of signature of the accused on the sealed bag raises doubt about the recovery of contraband article from the possession of the appellant.
28. Moreover from the record, it further appears that it is categorical case of the prosecution that 29 packets have been recovered from a white bag with which the appellant was found sitting and the appellant has stated the contraband article weighed about 25 Kgs. Charas but P.W.1, who had made the arrest and seizure of the appellant did not weighed the contraband article recovered from him and only on the statement of appellant it was believed to be 25 Kgs. Charas and no actual weight was taken by P.W.1 which further creates doubt whether the alleged contraband article was the same which was recovered from the possession of the appellant and sent to chemical analysis. It is further noted that 29 packets of Charas weighing about 25 Kgs. Charas is said to have been recovered from the appellant but the sample in question which was taken before the court by the Investigating Officer does not disclose or shows that whether the sample was taken from all the 29 packets recovered from him from a white bag and send to chemical analysis by P.W.3 which further creates doubt whether the 29 packets which were recovered also contained Charas as from the report of the chemical analysis shows that he has only received one bag sealed in a cloth which was found to be Charas. The prosecution has thus failed to show from the record that how many samples were taken from the contraband article which was recovered from the appellant and sent to chemical analysis. Lastly from the record it transpires that no sample of seal was sent along with the sample to chemical analysis for the purpose of comparing with the seal bearing on the sample, therefore, there is no evidence to prove satisfactorily that the seal found was in fact the same seal as was put on the sample bag immediately after seizure of the contraband. These loopholes in the prosecution case cannot sustain the conviction of the appellant in view of the judgment of the Apex Court in the case of State of Rajasthan vs. Gurmail Singh (Supra).
29. The learned A.G.A. though had tried to justify the conviction and sentence of the appellant but he could not point out to the Court from the record whether the police party had taken the actual weight of the article, i.e., Charas recovered from the appellant, whether the Malkhana register was produced by the prosecution to show that the article which was deposited by P.W. 1 in the Malkhana of the concerned police station and entrusted to P.W. 4 was the same which was produced before the court on 23.8.1999 and sent to the chemical analyst. Moreover, he could not also dispute the fact that the sample was not taken from all the 29 packets recovered from the white bag with which the appellant was sitting and only one sample was taken of the contraband article which was sent to chemical analysis.
30. Thus, from the aforesaid discussions and evidence on record, it is apparent that the recovery of the contraband article from the possession of the appellant appears to be doubtful and the prosecution has not proved its case beyond reasonable doubt against the appellant proving the recovery against him in strict compliance of the provisions of N.D.P.S. Act, hence his conviction and sentence by the trial court is not sustainable in the eyes of law. Thus, the impugned judgment and order passed by the trial court convicting and sentencing the appellant is hereby set aside. The appeal stands allowed.
31. The appellant is stated to be in jail in the present case. It is directed that the appellant be released forthwith, if he is not required in any other case.
Dated:-08.01.2014 Shiraz.