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11. The above sealed envelope of powder and documents etc, alongwith original panchnama and some other follow up report, were forwarded by the office of the Central Excise, Dehradun to DRI, Delhi vide letter Ex. PW4/J dated 12.08.2008. Subsequently on 18.08.2008, the above sealed envelope was opened by the IO/PW4 in the presence of the witnesses, and on testing a pinch of the substance taken out from the above powder, the same had tested positive for Amphetamine, a psychotropic substance and its net weight was taken and found to be 22 Grams. The IO/PW4 had also drawn two representative samples of 5 Grams each out of the above substance and these samples were individually kept in small zip locked polythene packets and marked as A-1 and A-2 and then kept in paper SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh envelopes and sealed with the DRI seal no. 10 over a paper slip containing the dated signatures of the witnesses joining the said proceedings and the IO/PW4 himself. The remaining powder was put back in another transparent zip locked polythene and it was also sealed in the similar manner in an envelope and the polythene and the envelope were marked as A. Test memos in triplicate were also prepared and the above proceedings were conducted by the IO/PW4 vide panchnama Ex. PW4/K. One of the above two sample envelopes Mark A-1 was subsequently deposited by the IO/PW4 with the CRCL New Delhi on 19.08.2008, alongwith duplicate test memos and vide forwarding letter Ex. PW4/R issued by PW7 Sh K.K.Sood, and the same was received there in intact condition by PW8 Sh V.P.Bahuguna vide acknowledgment Ex. PW4/S and the parcel of the remaining case property was also deposited by the complainant with PW3 Sh D.B.Sharma of the Valuable Godown in intact condition on the same day vide deposit memo Ex. PW3/B and another report U/S 57 of the NDPS Act Ex. PW2/D was also prepared and submitted by the IO/PW4 to PW2 Sh S.K.Sharma regarding the seizure of the above powder which had tested positive for Amphetamine. Vide the test reports of the CRCL Ex. PW9/A and Ex. PW8/A respectively, which were received subsequently, the above samples of Heroin and Amphetamine had tested positive for the same. Efforts were also made to secure the presence of Shyam Lal Sharma and summons U/S 67 of the NDPS Act and were pasted at his given address on few occasions, through the officers of the SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh Central Excise, Dehradun, but his presence could not be secured and ultimately a complaint U/S 172/174 IPC for non-appearance/compliance of such summons was filed against him before the court of Ld ACMM, New Delhi. Some letters were also sent to DRI, Amritsar and Jammu for verification of the previous involvements of the accused and awaiting reply to the said letters, after recording some statements and completing the other formalities of investigation, a complaint for commission of the offences punishable U/S 21 and 29 of the NDPS Act was ultimately prepared and filed by the IO/PW4 against the accused in the court.

20. PW7 Sh K.K.Sood, the then Assistant Director of DRI, was handed over the sealed parcels of samples and remaining Heroin on 09.08.2008 by the IO/PW4 for safe custody, after the conclusion of the panchnama proceedings. On 11.08.2008, he had got deposited the sample parcels with the CRCL and the case property with the Valuable Godown through PW5 Sh Ram Kanwar, as stated above, and is a signatory to the above forwarding letter Ex. PW5/A of the samples and had also countersigned the deposit memo Ex. PW5/C. On 18.08.2008, he was again entrusted the custody of the parcels of the samples and remaining Amphetamine by the IO/PW4 and on 19.08.2008, he got deposited the samples with CRCL and the case property with Valuable Godown through the IO/PW4, vide forwarding letter Ex. PW4/R and the deposit memo Ex. PW3/B. He had also written some follow up letters to the DRI, Amritsar, Assistant Commissioner, Dehradun, Uttranchal and Commissioner, Jammu etc. and received replies thereof.

52. Now, this court has to see the effect of seizure of the above psychotropic substance named Amphetamine weighing around 22 Grams, which was recovered from the above house premises of the above Shyam Lal Sharma at Rishikesh, Uttranchal. As per the prosecution case, the above address of House No. 509, Behind Bhairon Temple, Chandrabhaga, Rishikesh of Shyam Lal Sharma was disclosed by the accused only in his above statement Ex. PW4/F dated 09.08.2008 and SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh thereafter the above seizure of Amphetamine was effected form the above house premises of Shyam Lal Sharma on 10.08.2008 by a team of the officers of Central Excise, Dehradun, Uttranchal. The prosecution has also examined on record two officers of the above team, i.e. PW10 Sh S.K.Mishra and PW14 Sh Prakash Singh Rawat, who both were posted as Inspectors in Central Excise at Dehradun at the relevant time. They both have deposed regarding their visit to the said premises as members of a team and also about the search of the said premises, after its locks were opened by a key maker called for the said purpose. They have also proved on record one panchnama drawn regarding the above search proceedings as Ex. PW10/A and there is a specific mention in the said panchnama as well as in their depositions about the recovery of 22.310 Grams of a suspected white colour powder kept in a black colour transparent polythene, which was recovered from an almirah kept in a room of the said house, besides the other documents Ex. PW12/A- Collectively and mentioned in the list of documents Ex. PW10/B on record. Though two public witnesses of the above search proceedings and the panchnama were also examined on record by the prosecution as PW12 Sh Ram Kumar and PW15 Sh Attar Chand, who both are the neighbours of the above Shyam Lal Sharma, but it is observed from their testimonies that they both have turned hostile on the point of recovery of the said documents and substance from the above premises in their physical presence, though they both have admitted their SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh signatures on the above panchnama and the documents recovered during the said search. However, even despite that, the depositions of the above witnesses duly corroborate the depositions made by PW10 and PW14 regarding the conduction of the said search proceedings and the recovery of some documents and substance therefrom on the above date. The above search proceedings were conducted in response to one follow up letter Ex. PW7/A sent by PW7 to the Assistant Commissioner of the above department at Dehradun.

55. However, still the recovery of the above substance named Amphetamine from the said premises could have been relevant and considered in this case had there been a charge framed against the accused for being party SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh to a criminal conspiracy to possess or to deal etc. in the above psychotropic substance or other contraband substances, which charge is mentioned under and made punishable by Section 29 of the above said Act. It is observed that though, this complaint was filed against the accused by the IO/PW4 for commission of the offences punishable U/S 21 and 29 of the NDPS Act, but a charge for the offence punishable U/S 21(c) of the NDPS Act only was directed to be framed against the accused vide order dated 19.03.2009 of this court and the said order had an implied effect of discharge of the accused for the offence punishable U/S 29 of the said Act. The above order of this court as well as the consequent charge U/S 21(c) of the NDPS Act framed against the accused were never challenged by the prosecution/DRI before any higher court and hence, in the absence of there being a specific charge framed against the accused for the above offence of criminal conspiracy punishable U/S 29 of the NDPS Act, this court is not in a position to consider and evaluate the evidence led on record by the prosecution regarding the recovery of the above quantity of Amphetamine weighing around 22 Grams from the abovesaid premises at Rishikesh, with reference to the above Section. The accused is a senior citizen as his age is found to be stated as 60 years in his above statement U/S 67 of the NDPS Act Ex. PW4/F dated 09.08.2008 and he is also running in custody since his apprehension by the DRI officers on 08.08.2008 and hence, any amendment of the charge by this court at this SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh highly belated stage, when the court was already considering the pronouncement of a judgment against him, would have certainly caused serious prejudice to him and was thus not warranted or required.