Allahabad High Court
Shaukat Ali vs State Of U.P. on 3 November, 2017
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 7.10.2017 Delivered on 03.11.2017 Court No. - 13 Case :- JAIL APPEAL No. - 4103 of 2013 Appellant :- Shaukat Ali Respondent :- State Of U.P. Counsel for Appellant :- From Jail,Anoop Kumar Mishra A.C. Counsel for Respondent :- A.G.A. Hon'ble Dinesh Kumar Singh-I,J.
1. This Criminal Appeal has been directed against judgment and order 9/7/2013 passed by the Additional Session Judge, Court No. 12, Varanasi in Special Criminal Case No. 187 of 2011, State vs. Shaukat Ali arising out of Case Crime No. 93 /2011, PS Manduwadih under sections 8/21 of the NDPS Act, whereby he has been awarded 10 years R.I., fine of Rs.1.00 lakh and in default of payment of fine one year additional imprisonment.
2. In brief, the facts of the case are as follows:-
3. The police Patrolling Party headed by Sub Inspector, Arun Kumar (PW 1) with his companion constables namely, Kanahiya Ram and Manoj Rai (PW 3) were busy in their area. When they reached SBI ATM near Manduwadih station, one person was seen coming from Kakarmatta side, who looking the police personnel took about turn and tried to flee but was followed by police party and was caught near Hanuman temple. He disclosed his name to be Shaukat Ali and told that because he was possessing 350 grams of heroin, he wanted to avoid arrest but was caught. On his such disclosure he was apprised about his legal right to be searched in presence of a Gazetted Officer or a Magistrate, but he expressed that he had already told them that he possessed heroin hence, they could take his search and that he had full faith in them. The written consent (Exhibit Ka 1) was obtained from him for being searched by the police party. Thereafter the accused was searched and from a bag being carried by him in his right-hand heroin was recovered. He stated that he was to go to Mau to sell the said contraband by train. The recovered heroin was weighed and was found to be 350 grams, but he could not show any license to possess the same. He was told that he had committed an offence under section 8/21 NDPS Act and had to be arrested and was taken into custody at 6 AM. The recovered contraband was sealed on the spot and sample of seal was also prepared. Many people were passing by but none of them came forward to be a witness of this recovery to avoid incurring enmity. The recovery memo (Exhibit Ka 2) was prepared and the same was read out to the accused and a copy of the same was also given to him. On the basis of recovery memo a case crime No. 93 of 2011 under section 8/21 of NDPS Act was registered on 10/4/2011 at 6 a.m. by constable Virendra Kumar Sharma (PW 2) at police station Manduwadih, Chick F.I.R. of which is Exhibit Ka 3. He also made entry of institution of case in GD at report No. 19, time 7:30 PM on 10/4/2011. The investigation was handed over to Sub Inspector, Shri Pankaj Pandey (PW 4) who prepared the site plan (Exhibit Ka 5) at the instance of the first informant. Constable Ajay Kant Rai (PW 5) took the recovered contraband (material Exhibit - 1) and the sample seal to PS Manduwadih and deposited the same there, from where the same was sent to the Forensic Science Lab for being tested.
4. The report of FSL is paper No. 16/ C2 ( not exhibited), however under section 293 of the Cr.P.C., FSL report is admissible in evidence, the same being report of an expert. The Investigating Officer ( PW 4) after recording statement of all the witnesses and taking into consideration the documentary evidence on record found the case proved against the accused appellant and submitted charge sheet (Exhibit Ka 6) against the accused.
5. From the side of prosecution as many as 5 witnesses have been examined, they being the first informant S.I. Sri Arun Kumar Yadav examined as PW 1, Constable Virendra Kumar Shah as PW 2, Constable Manoj Kumar Rai as PW 3, S.I. Pankaj Pandey as PW 4 and Constable Ajay Kant Rai as PW 5. Thereafter the evidence of prosecution was closed and the statement of accused under section 313 of the Cr.P.C. was recorded in which he took the plea of false implication and stated that he was forcibly arrested by the police which fabricated this case against him.
6. The learned Court below after having taken entire evidence on record has come to the conclusion that the prosecution has successfully proved the charge against the accused appellant under section 8/ 21 of NDPS Act and hence sentenced him with above punishment.
7. The learned Amicus Curiae defending the accused appellant has made following arguments:
8. The statements of the witnesses of fact do not prove the site plan because of their statements being contradictory; the person from whom Constable Kanhaiya Lal had brought the weighing machine, has not been examined; the arrest of the accused appellant is stated to have been made at 6.00 A.M while the witnesses are shown to be present at 5:40 A.M hence there is no explanation of the difference of 20 minutes period; the seized contraband remained in police custody from 10.4.2011 to 19.4.2011, during this period there was enough scope of the said Contraband being tampered; no independent witness of recovery has been examined by the prosecution; it is the prosecution's case that the recovered seized Contraband was got received at police station at 7.30 a.m. but the register of Malkhana was not produced in evidence to prove that the said material was got deposited in Malkhana by that time; the FSL report is alleged to have been dispatched on 25.5. 2011 while the same was sent to the Lab on 19.4.2011, it is not explained as to why 8 days delay took place when FSL was located in Varanasi itself. The charge sheet has been submitted in this case on 19.4.2011 while the FSL report was received on 25.5.2011 which indicates predisposed mind of Investigating Officer because it was not possible for him to know as to whether the FSL would come to the conclusion that the alleged recovered contraband would be found to be heroine; The FSL report is signed by Assistant Director while it is not made clear as to whether he was an expert or not because as per the provisions of section 293 of the Cr.P.C., an expert's report only is admissible in evidence; the process of sampling has also not been disclosed. The procedure as laid down under section 57 of the NDPS Act has not been complied with because within 48 hours of arrest of the accused the entire report was required to be sent by the arresting Police Party to their superior authority.
9. In rebuttal, the learned AGA has denied that there is any major material contradiction in statement of witnesses and that whatever contradictions have emerged are natural looking to the time lapse between the date of occurrence and the recording of the statements. Further it is argued that no cross examination on such contradiction has been made by the defense, hence no benefit may be given to the accused appellant for minor contradictions. The Constable Kanhaiya Lal who had brought the weighing machine was not considered to be a material witness by prosecution, hence he was not examined. The time gap between the Police Party reaching the spot and the arrest of the accused is hardly 20 minutes which is of no significance; The FSL had found the recovered Contraband in sealed condition hence the length of time for which it remained in police custody between 10.4.2011 and 19.4.2011 would bring no infirmity in the prosecution's case. The seal was found intact by the FSL at the time when it was received there. As regards independent witnesses, it is argued that in cases under N.D.P.S. Act, it is not mandatory to examine the independent witnesses because it is difficult to find such witness because of apprehension of incurring enmity. Further it was argued that the effort was made by Police Party but none was ready to be eyewitness which is evident from the recovery memo. As regards Malkhana register not being presented, it is argued that the same was not necessary to be presented before the Court at the time of prosecution's evidence. It is also argued that it makes no difference whether charge-sheet is submitted prior to the receipt of expert's report on or after its receipt, because the said report is admissible in evidence under section 293 of the Cr.P.C.
10. As regards the discrepancy in eye-witnesses' statements pertaining to site plan, the evidence on record needs to be looked into. In cross examination PW 1 has stated that he had seen the accused in front of ATM located near Maduwadih Railway Station who was coming from the side of Kukurmutta. There may have been a distance of 60 steps between him and accused at that time when he had seen him first. The accused was on the other side of Maduwadih station towards Kukarmutta about 65 steps away from him and he was coming from the south to north. When they had suspicion about him he was arrested after he had run about 115 steps. He had caught hold of him first and with him two other Constables also simultaneously reached there. PW 2 has stated in cross examination in this regard that while doing patrolling about 6.00 A.M in the morning, coming from the side of Mahmoorganj towards Kukurmutta when he reached near SBI ATM located near Maduwadih station the accused coming from the side of kukurmutta stopped and tried to run in reverse direction; he was caught near Hanuman temple. Thus after having gone through the statements recorded above of these two eyewitnesses of recovery and arrest of the accused, there is hardly any discrepancy found between their statements regarding the location of the place of occurrence as shown in the site plan. This court finds that in the light of statements of these two witnesses the site plan is absolutely proved and the place of arrest would be treated to have been proved by the prosecution, hence any objection in this regard made by the learned counsel for the appellant does not hold water.
11. As regards the site plan, Kanhaiya Lal not being examined who had brought the weighing machine for measuring the quantity of the contraband recovered from the accused, the Court is of the view that whatever witnesses were found sufficient by the prosecution to prove their case were examined by them. He being not a material witness was left unexamined but that would not prejudice the case of prosecution.
12. As regards time gap of 20 minutes between police reaching the spot and arresting the accused, PW 1 has stated that the Police Party had reached the spot at 5:40 A.M and within 2 to 3 minutes they had reached near ATM located near Maduadih station. Nothing has been asked in cross examination from him as to how the arrest could be made at 6.00 A.M while they reached at 5:40 A.M on the spot. It is quite natural that when the Police Party reached the spot at 5:40A.M. and saw the accused in suspicious condition, they tried to chase him. It certainly would have taken 20 minutes to catch hold of the accused, hence his arrest at 6.00 A.M does not sound unreasonable. Similarly no question appears to have been put to other witness of fact also regarding any doubt about their presence at the place of occurrence at 5:40 A.M and the arrest of accused at 6.00 A.M. Hence the objection of learned Amicus Curie regarding 20 minutes time gap between the Police Party reaching the spot and arresting the accused is hardly of any significance.
13. One of the important points argued relates to the keeping of recovered Contraband in custody of police between 10/4/2011 and 19/4/2011 giving enough chance of tampering by police. It would be important to evaluate statement of witnesses in this regard. As per recovery memo the accused had disclosed himself that he was possessing heroine. On such disclosure he was apprised about his legal right to be searched before a Gazetted Officer or a Magistrate and after accused having given in writing that he would not like to be searched in presence of any such officer, rather had full faith in the Patrolling Party to be searched by them, his search was made and 350 grams of heroine was recovered from the bag being held by him, for possessing which, he had no licence. The said Contraband was weighed also on the spot by sending Constable Kanhaiya Rai to bring weighing machine and thereafter it was found to be 350 grams. Pursuant to that he was arrested at 6.00 A.M and after the said recovered item having been sealed on the spot and the sample of seal having been prepared, he was taken to the police station where the case was registered under the aforesaid sections.
14. PW 1 has supported the said version as given in the recovery memo and in cross-examination he has stated that the recovered contraband was sealed on the spot in the same bag which was recovered, which was to be sent to the Forensic Science Lab for being tested. The said recovered material was presented in his presence before Court, on the cloth of which 881 case was endorsed along with name of the accused with parentage and his own signature was also identified by him on it. He stated that this was the same contraband item which was recovered from the accused Shaukat Ali. He also identified on it a seal which he had affixed on it at the time of recovery and 2 other seals which were found thereon were of Forensic Science Lab. He identified his signature on the cloth in which the material was sealed and was marked as Exhibit 1. After opening the sealed packet, one big shining bag bearing endorsement 881 case emerged out of it, seeing which the witness stated that it was the same bag which was recovered from the accused and was marked Exhibit 2. In cross-examination it was stated by this witness that when accused told him that the said recovered material was heroin in polythene, a little part of it was opened to see therein and thereafter the same was sent for chemical examination to the Forensic Science Lab. Its weight was found to be 350 grams, but the said weight could not be written by him in the recovery memo. What was the weight of the contraband which were received by the Forensic Science Lab, he could not tell, because he omitted to mention the same in recovery memo by mistake. No question has been asked regarding this fact from the other eye witness (PW 3) of recovery. From the above facts it is apparent that the recovered contraband was sealed on the spot and the same was taken to the Forensic Science Lab in sealed condition, from where report dated 4/5/2011 has been submitted which was received on 25/5/2011. The said report also indicates that the bundle received by them on 19/4/2011 bore seal ''Monogram S.I. U.P.P.' which was sent by police on the same day, although according to recovery memo the arrest of accused was made on 10/4/2011. The argument that from 10/4/2011 till 19/4/2011 the recovered contraband remained in police custody, would not by itself lead to the inference that the said contraband was tampered by the prosecution for false implication of the accused, because the PW1 has clearly stated that the said recovered contraband was sealed on the spot and the same seal was found by him when this material was sent back after being tested by the Forensic Science Lab apart from two other seals of the Lab. The Lab report stated that it had found the seal intact affixed at the time of its recovery. Therefore no benefit would go to the accused only because there was delay in sending the recovered material to FSL. The learned Amicus Curiae has relied upon State of Rajasthan vs Gurmail Singh, 2005 (3) SCC 59, in which the seals of the seized articles were found to be disputed and the Malkhana register was also not produced, hence the acquittal order was passed. He has also relied upon Prem Singh vs State of U.P., 1996 Cr LJ 3604, in which the Delhi High Court held that the defense was successful in creating dent in the case of prosecution because on the basis of evidence it could not be ruled out that the sample could not be tampered or the case property were the same. It was found that likelihood of sample being tampered, so long as it remained in the custody of Ashok Kumar, could not also be ruled out and consequently acquittal order was passed. But in both these rulings, the facts were entirely different from the facts of the present case.
15. Next important point raised by learned counsel for the appellant is with regard to submission of charge sheet prior to the receipt of FSL report. The contention of the learned counsel for the appellant is that it shows that the Investigating Officer in the present case had already pre-decided in mind to hold the accused guilty without ascertaining that the contraband which was recovered from him was actually heroin as FSL's report was awaited before submission of the charge sheet.
16. In Full Bench case of High Court in the case of Punjab and Haryana Vs. Mahal Singh and another (AIR 1978 P & H 341), this point came up for consideration. It was issue before this Court as to whether investigation of an offence would be considered complete in terms of Section 173 Sub-clause (2) of Cr.P.C., although police officer investigating the case had not received report of such experts as Chemical Examiner, Serologist, Ballistic Expert or Finger Print Expert etc., whose reports were made admissible in law under Section 293 of Cr.P.C., without these being proved by the said experts in witness box and whether a charge sheet excluding aforesaid documents, when submitted to a Magistrate would qualify to be termed a police report in terms of Section 190(1)(b) of Cr.P.C., and enable the Magistrate to take cognizance of offence disclosed therein.
17. The answer to the said issue has been given in paragraphs 16 and 20 of the judgment as follows:-
In paragraph 16 and 20, the court has held as below:-
"16. In view of the above conclusion the accused would be on still a weaker ground in canvassing that the report, which did not include the report of the experts, such as Chemical Analyst, Serologist, Ballistic Except, Finger Print Expert etc., would not be a complete police report as envisaged in sub-section (2) of S. 173 of the Code which in terms is prepared and submitted only after the completion of the investigation."
So far as the investigation part of the job of the investigating officer is concerned, it is in our opinion complete the moment he had collected all evidence and facts that are detailed in sub-clause (2) of Section 173 Cr.P.C. and from the evidence, thus concluded he is satisfied that the case deserves to be initiated against the accused. And further even if the investigating officer had not received the report of the expert, so far as his job of concluding of the evidence is concerned, that is over moment he dispatches the material for opinion of the expert and incidentally cites him as a witness, if he relies on his testimony.
"20. For the reasons stated, I held that the investigation of an offence cannot be considered to be inconclusive merely for the reason that the investigating officer, when he submitted his report in terms of sub-section (2) of S. 173 of the Code to the Magistrate, still awaited the reports of the experts or by some chance, either inadvertently or by design, he failed to append to the police report such documents or the statements under S. 161 of the Code, although these were available with him when he submitted the police report to the Magistrate."
18. In the above case, the Punjab and Haryana High Court has taken an assistance of the position of law laid down by Hon'ble Supreme Court in Tara Singh Vs. Sate, AIR 1951 SCC (441), in which in paragraph 13 of the judgment, the following is held:-
"12. I need not express any opinion about this because, in my opinion, the challan which the police referred to as an incomplete challan, namely, the one of 2nd October, 1949, was in fact a complete report within the meaning of section 193(1) (b), criminal procedure code, read with section 173(1)."
13. When the police drew up their challan on 2nd October, 1949 and submitted it to the Court on 3rd October, 1949, they had in fact completed their investigation except for the report of the imperial serologist and the drawing of a sketch map of the occurrence. It is always permissible for the Magistrate to take additional evidence not set out in the challan. Therefore, the mere fact that the second challan was put in on the 5th October 1949 would not necessarily vitiate the first. All that Section 173 (1)(a) requires is that as soon as the police investigation under Chapter XIV of the Code is complete, there should be forwarded to the Magistrate, a report in the prescribed form, "setting forth names of the parties, the nature of information and the names of the persons who appear to be "acquainted with the circumstances of the case" . All that appears to have been done in the report of 2nd October, 1949, which the police called their incomplete challan. The witnesses named in the second Challan of the 5th October, 1949 were not witnesses, who were acquainted with circumstances of the case. They were merely formal witnesses on other matters. So also in this supplementary Challan of the 19th. The witnesses named are the first class Magistrate, Amritsar, who recorded dying declaration and the Assistant Civil Surgeon. They are not witnesses who were "acquainted with the circumstances of the case". Accordingly, the challan which the police called an incomplete Challan was, in fact a complete report of the kind which Section 173(1)(a) of the Code contemplates. There is no force in this argument and we hold that the Magistrate take proper cognizance of the matter.
19. In Taj Singh Vs. State (Delhi Administration), 1988 Criminal Law Journal, 1634, Delhi High Court came across a question for determination as to whether investigation of the case would be said to be complete in terms of Section 173(2) Cr.P.C., when the investigating officer submitted the challan before the Magistrate on 27.1.1987, (90th day in terms of the proviso (a)(1) to Sub Section (2) of Section 167 Cr. P.C.) without appending thereto the report of Central Forensic Science Laboratory, New Delhi which report has been made admissible in evidence under Section 293 Cr.P.C. of the Code without the same being proved in the ordinary manner by the deposition of the expert making the same, in the witness box.
20 The answer to the above question is found contained in para 7 of the judgment which is as follows:-
"7. Even if, the investigation officer had not received the report of the CFSL so far as his job of collecting the evidence is concerned, that is over the moment he collects the material exhibits and the dispatches the same for the information of CFSL and this position remains un-altered even though he relies upon CFSL report in his report. In this view of the matter, it will not be correct to say that the police report which did not include the CFSL report would not be the complete police report as envisaged in sub-section (2) of Section 173 of the Code which is prepared and forwarded to the Magistrate only after the conclusion of the investigation."
21. Based on above position of law, in the case at hand it may be mentioned that charge sheet submitted by police under Section 173 Cr.P.C. shall be considered to be not incomplete report merely because it did not contain the Forensic Science Laboratory's report in respect of contraband recovered from the accused, because it had not been received by the time the charge-sheet was submitted. It may further be mentioned that no prejudice is caused to the accused by delayed submission of FSL's report which contains the finding that the sample sent for testing was found to be heroin. There is no denying the fact that if the said sample was not found to contain heroin, the court below would have no option but to pass an acquittal order.
22. As regards the objection raised that provisions of Section 57 of the NDPS Act were not complied with, it would be pertinent to reproduce Section 57 so as to know what does it command. The Section 57 of the Act reads as follows:-
Section 57- " Report of Arrest and Seizure- whenever any person makes any arrest of seizure under this Act within 48 hours next, after such arrest or seizure may make full report of all the particulars of such arrest or seizure to his immediate official superior."
23. The above Section has been interpreted in Union of India Vs. Satrohan (2008) 8 SCC 313 by Hon'ble Supreme Court and the following is held:-
5. "It is pointed out that section 50 is not applicable to the case. Additionally, under section 57 secret information has to be sent and the particulars of seizure and arrest have to be sent. The records, if asked for could have been produced. In the instant case there is no evidence led and not even any question was asked about absence of records. In the alternative, the inspector was a Gazetted Officer and, therefore, even if it is conceded for the sake of argument that there is any incorrect reference, the acts are covered under section 41 and not under section 42. "
"12. So far as the fulfillment of the requirement of Section 57 of the Act is concerned it is to be noted that the legal position was stated by this Court in T. Thomson Vs. State of Kerla and another [(2002) 9 SCC 618] and in State, NCT of Delhi v. Malvinder Singh [JT (2007) 9 SC 283]." In Malvinder Singh case at JT para 6, it was observed as follows:
(SCC p. 137 Para 7) "7. At this juncture, it would be relevant to take note of what has been stated by this Court in T. Thomson Vs. Sate of Kerla, 2004 SCC (Crl.)447. Para 5 is quoted as follows:-
"5. Learned Senior counsel further argued that the record alleged to have been prepared by PW- 1 on getting information regarding the movement of the appellants has not been produced in court. But he conceded that no motion was made on behalf of the appellants to call for the said record. There is no statutory requirement that such a record should be produced in the Court as a matter of course. We are, therefore, not disposed to upset the finding on that score either."
24. In view of above, provisions of law, it is apparent that in the case it hand from perusal of the statement of witnesses, it is clear that no question has been asked in cross-examination by the learned counsel for the accused/appellant regarding non-compliance of the provisions under Section 57 of the NDPS Act. It is apparent from the above cited position of law that this provision is not mandatory rather it is directory. Hence, trial will not vitiate unless it is shown that its non-compliance has caused any prejudice to the accused. From the statement of PW 5 it is apparent that the Circle Officer, Bhelupur was approached on 19/4/2011, who is a Gazetted Officer, immediate senior to the police party which arrested the accused, regarding attestation of the signatures of PW 5 for carrying the recovered contraband from the accused to Forensic Science Lab for being tested, which would amount to an information given by the police to their higher authority, though belatedly. Therefore, it may be safely stated that there was belated compliance of section 57 NDPS Act as well.
25. As regards the objection that no public witnesses were taken by the police party while making search of the accused, it has come on record that there had reached some persons from public but when they were asked to be a witness of the recovery they avoided. In this regard, the reliance is being placed on Tasawwwar Ansari Vs. Union of India 1997, (AIR 35, ACC 675), wherein this Court has held as follows in paragraph 32 of the judgment:-
"32. In these days, totally unconcerned people do not dare to appear against criminals as they have a lot of financial as well as political patronage available to them. Such smugglers are invariably armed and then can take revenge against such public persons without hesitation. That is why, finally, the public witnesses avoid to support the prosecution case. If at all they agree at the time of raid, search etc., they try to resile from the same in trial Court as is evident from the statement of Sri K.D. Sharma, PW 2. The departmental witnesses cannot be seen with an eye of suspicion specially, when they have no anterior enmity with the accused and they are doing their official duties. If such a cynical view is taken every person shall become interested and the departmental witnesses will have to be thrown away without any rhyme or reason. This is not law of the land. The law is that the departmental witnesses per se are no got up witnesses and their evidence cannot be discarded simply because they are people of the department. Doing ones official duty is not a crime. Therefore, the question of seeing the statement of these witnesses with an eye of suspicion is unreasonable, unworkable and is totally illegal in approach. The Hon'ble Supreme Court has rightly rejected the plea that the departmental witnesses should always be seen with an eye of suspicion. Rather the law is that their evidence should be seen with a caution and the evidence should be analysed and examined very thoroughly. But once it is found that the presence of such departmental witnesses is established and they are telling the truth, that shall be utilised as a valuable piece of evidence and conviction can be based upon that."
26. In view of above position of law, it may be mentioned that merely because public witness has not been taken by the police party, the statements of police witnesses who were discharging their official duty would not be taken to be false and may not be dis-believed solely on the ground that they were police witnesses. The only requirement in such a situation is that all the statements of such witnesses need to be evaluated very cautiously.
27. A perusal of the judgment would show that the prosecution has been able to prove on the basis of evidence on record of two eye-witnesses i.e. PW 1 and PW 3 that the accused was arrested on 10/4/2011 at 6.00 AM in front of Maduwadih station near SBI ATM just before Hanuman temple because of his suspicious conduct and when he disclosed that he had illegal heroin, the police party apprised him that he had a right to be searched before Magistrate/Gazetted Officer if he so wanted, in compliance with section 50 of NDPS Act, but he declined and gave a written consent to be searched by the police party itself. Thereafter illegal heroin weighing 350 grams was recovered from the bag carried by him, for which he was not having any license to possess. The recovered contraband (heroin) was sealed on the spot and a sample of seal was also prepared. Recovery memo was also prepared on the spot. Whereafter PW 2 registered F.I.R. against him under section 8/21 of NDPS Act at PS Maduwadih the same day i.e. on 10/4/2011 at 7:30 AM as Case Crime No. 93 of 2011, when the accused along with the recovered contraband in sealed condition was brought to the police station by the police party. PW 5 had taken 2 dockets of the recovered contraband and sample seal on 19/4/2011 to Circle Officer's office and on the copies of both these dockets the Circle Officer obtained his 3 signatures each and verified/attested them. Thereafter 2 copies of dockets of contraband and sample of seal were taken by him to Forensic Science Lab, Ram Nagar, Varanasi and the same were handed over to them. The Forensic Science Lab sent its report dated 4/5/2011, admissible under section 293 Cr. P.C. which states that a bundle wrapped in cloth bearing sample seal was received by them on 19/4/2011 which contained suspected heroin weighing 347.20 grams in a polythene bag (difference in weight may have been due to weighing machine), which after being tested was found to be heroin. The Investigating Officer (PW 4) has drawn the site plan at the instance of first informant who submitted charge-sheet against accused after taking the entire evidence on record into consideration. No material contradictions are found in the statements of witnesses. Therefore no substance is found in appeal.
28. No infirmity has been found in the judgment of court below. This appeal deserves to be dismissed, and is accordingly, dismissed.
39. Before parting this Court would like to place on record the appreciation and hard work done by the learned Amicus Curiae Shri Anoop Kumar Mishra, for which he should be adequately compensated by being paid Rs.7500/-. It is accordingly ordered that he be paid the aforesaid amount.
30. Let the lower court record be sent back for the compliance.
Order Dated: 03.11.2017 AU/d