Document Fragment View

Matching Fragments

(b) learned counsel submits that the seizure was made by the police in absence of any Class-II Officer, therefore the whole procedure in respect of seizure of the Brown Sugar from the exclusive possession of the appellant is doubtful. He further submit the packet of Brown Sugar was not provided to the Mal Mohrir in closed packet and even the said packet was not weighed. Learned counsel submit that the prosecution has not complied the mandatory provision of NDPS Act in respect of seizure of the Brown sugar. Thus, the impugned judgment of conviction and order of sentence are bad in law and the same deserve to be set aside. In the alternate, he would pray for reduction of jail sentence.

He further deposed that after the appellant searched the police force present with him one by one, Panchnama Ex.P. 13 of the police staff in front of witnesses was prepared which is bearing signatures of the witnesses. He also deposed that after the appellant searched the witnesses namely Sanju Pandey and Ashish Tiwari present with him one by one in front of witnesses and when no objectionable object or intoxicant was found with the witnesses either, he prepared the search panchnama of the witnesses Ex.P.14, on which my signature is there from B to B and the accused has signed on C to C. He deposed that he searched the appellant in front of witnesses and then a brown coloured powder kept in a transparent polythene was found in the right pocket of the full pant worn by the accused, which was taken out from his pant. He deposed that on suspicion of brown sugar, he opened the transparent polythene found with the accused and smelled and burnt it in front of witnesses, then the intoxicant was found to be like brown sugar. Subsequently, he prepared its identification panchnama Ex.P. 16, on whose B to B part his signature is there and on C to C the accused has signed. He opened the brown sugar found from the accused and mixed it in front of witnesses and duly harmonized it and prepared its harmonized panchnama Ex.P. 17, on whose B to B part his signature is there and on C to C the accused has signed.

15. (PW 7) Ashish Tiwari has admitted that when the policemen searched Amar Dubey near Kerala Coffee House, brown sugar was found from the accused. He also admitted that when the brown sugar was weighed, its weight was found to be 47.150 grams and in the cross-examination conducted by the accused. The witness admits that Rupendra Soni was called by the police by giving him a notice or he does not know how he came to the scene of the incident. The witness has admitted that no weighing of any kind has taken place in his presence. He has accepted that Police personnel had packed the brown sugar in a packet and sealed it.

32. Having gone through the material available on record and the evidence of the witnesses Constable (PW3), Sanjeev Pandey (PW5), Investigating Officer (PW6), and Ashish Tiwari (PW7), which establish the involvement of the appellant in the crime in question beyond reasonable doubt. Thus, considering the oral and documentary evidence on record the seizure of brown sugar from the possession of the accused/appellant which was subsequently found to be brown sugar (diacetylmorphine) as per FSL report vide Ex. P/28, this Court does not see any illegality in the findings recorded by the trial Court as regards conviction of the appellant under Section 21(B) of Narcotic Drugs and Psychotropic Substances Act.