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Both the convicted persons were detained on the spot. The matter was reported to the Inspector Excise Sub Range, Kathua, who came on the spot along with Executive Magistrate, Kathua. The contraband was seized and weighed in presence of the Executive Magistrate and it was found to be weighing 720 Kgs. Two samples weighing 50 gms were taken from each bag and sent to FSL for chemical analysis. The FSL report reveals the sample belonging to Poppy plant (pappaver Somniferum) and morphine was detected from them. It was found in the investigation that the appellants were transporting, smuggling commercial quantity of poppy straw illegally. After completion of the investigation, challan was filed and the charge for the commission of offence under sections 8/15 NDPS Act was proved against both the appellants. After full dress trial, both the appellants stand convicted by the Court of Principal Sessions Judge, Kathua, vide its judgment dated 14.0.2013. On 15.01.2013, the appellants were sentenced to undergo rigorous imprisonment for a period of 20 years, with a fine of Rs.1.00 Lakh each for commission of offence under Section 8 read with Section 15 (C) of NDPS Act. In default of payment of the fine, the appellants would undergo simple imprisonment for a further period of one year.

(i) That there is inordinate and un explained delay in handing over the seized samples to the FSL; furthermore, the report does not disclose the actual percentage of the morphine of the narcotic drug in the sample. Thus, the samples taken from the recovered substance does not have a representative character, as such, creates doubt in the prosecution case.
(j) That because there is no mention of actual content of narcotic drug in the alleged recovered item, as such, in the absence of percentage of the quantity of narcotic drug it cannot be determined whether the quantity was small or commercial one.

5. Learned counsel for appellant, in support of his submissions, has relied upon the following judgments:

1. Criminal Appeal No:2104 of 2012 titled Gorakh Nath Prasad vs State of Bihar;
2. Cr. Appeal No: 39/2013 Ghulam Mohd Bhat and anr. V State of J&K
3. 2004 SCC (Cri) 2028 titled Jatindra and Anr vs State of M.P.

6. From the comparative reading of the evidence in the form of statements of the witnesses and seizure memos with the challan, it is said by the Trial Court that on 19.08.2010 at 11.00 AM, when alleged Truck bearing No.PB12H-7041, reached the export yard for clearance at Toll Post Nagri Kathua, the appellant Jaspal Singh stated to the Excise Guard on duty that the truck was empty, but on physical checking of the truck by the said Excise Guard, Javed Iqbal, the truck was found loaded with filled gunny bags. The Excise Guard reported the matter to the Sub Inspector, Dheeraj Kumar, who also checked the vehicle on the information given by the Excise Guard and himself reported the matter to Excise Inspector Rohit Sharma who ultimately brought the matter to the knowledge of Pardeep Singh Chib, Incharge Toll Post Nagri. It was found that the truck was loaded with 20 gunny bags of poppy straw (Bukhi). The vehicle with alleged poppy straw along with the appellants were detained by Toll Post authorities at Nagri Kathua. The ETO, Pardeep Singh Chib, called the complainant Inspector, Excise Sub Range, Kathua, and narrated the whole incident with a request to take further necessary action. The complainant-Inspector wrote a letter bearing No.380/ ERK dated 09.08.2021 to District Magistrate Kathua for deputing an Executive Magistrate in order to carry further proceedings on the spot. In view of that letter, Krishan Kumar Sharma, Naib Tehsildar was deputed and the complainant Inspector and Krishan Kumar Sharma along with Excise staff proceeded towards the Toll Post Nagri and reported the ETO Toll Post Nagri at 2.10 PM. The alleged contraband, i.e., gunny bags carrying the alleged poppy straw was seized and put to weight at Weigh Bridge No:8 of Toll Post Nagri under the supervision of Pardeep Singh Chib, ETO Toll Post Nagri. The bags were 20 in number and total weight was found to be 720 Kgs. On 19.08.2010, ETO Toll Post Nagri handed over the alleged complainant`s letter No: 01- 04/TPN dated 19.08.2010 signed by him and other seized documents. The seizure memo, the inventory and the other documents as revealed by the challan, by the statements of the prosecution witnesses, all these documents were prepared on the spot and besides this, statements of the witnesses were also recorded on the spot. Furthermore, statement of the witnesses, reveals that two samples of alleged poppy straw (Bukhi) weighing 50 gms each were taken from each gunny bag and one set of samples was marked as B-1 to B-20 and were packed and sealed and the other set of samples were marked as C1 to C20 and they were also sealed. The rest of the alleged poppy straw in the 20 bags were marked as A-1 to A-20 and they were also sealed. The bags and the samples were sealed with brass seal in presence of Executive Magistrate, Ist Class, Kathua. Thereafter the packets and the samples bearing Mark A-1 to A-20, B-1 to B-20 and C-1 to C-20 respectively were again resealed on the spot by Executive Magistrate Kathua with his office seal and regarding this, the Executive Magistrate Ist Class also issued a certificate addressed to Director FSL, Jammu, authorizing him to break the seal of samples for chemical analysis. The samples marked as B-1 to B- 20 of alleged poppy straw were sent to Director, FSL, Jammu, for chemical analysis and the samples were deposited before Director FSL Jammu, under receipt No:1418/ FSl/Legal/Jammu dated 01.09.2010. The report of FSL Jammu vide No.563/CAT/ FSL dated 03.11.2010 and covering letter No; FSL/Jammu/1046/10 dated 03.11.2010, attached to the complaint clearly reflects that the Exhibits contain poppy straw (pappaver Somniferum) and Morphine was detected from the exhibit/Sample taken out from the seized poppy straw.

1. Exhibit marked K-992/10 to K-1011/10 belongs to Poppy plant(Pappaber Somneferum).
2. Morphine was detected in the exhibitNo:992/10 to K- 1011/10.

17.The contents of the report No: 563/C&T/FSL attached to the court file are true and correct. It bears his seal and signature and is exhibited as EXT-P7. On cross examination by the defence counsel, he has deposed that the letter from the Inspector Excise Sub Range Kathua bears No: 385/ERK dated 23.8.2010 and the same was received by their office on1.9.2010. The total number of seals on each packet were two, one of the Excise Department and the other one of the Executive Magistrate Ist Class Kathua. Only one certificate along with the specimen seal of the Executive Magistrate is on the court file. There is no mention of Excise seal in the authorization letter of the Ist Class Magistrate. The copy of which is in the court file. The percentage of Morphine has not been mentioned by him in his report.