On March 8, 2005, at about 3.30 p.m. one Anil Kumar Jharkhadia PW.10 , Town Inspector, Police Station Kareli received information that the appellant, the owner of Satyanarain Talkies is engaged in selling of smack powder heroin in companymon parlance from his cinema hall.
Samples were similarly taken from the recoveries made from those two accused also.
The search, made under the Search Memo, Exhibit P.17, yielded three packets from the pocket of the kurta worn by the appellant.
The samples taken from the smack powder alleged to have been recovered from the three accused, including the appellant were sent to Forensic Science Laboratory vide draft, Exhibit P.31.
Another appeal being Criminal Appeal number86 of 2006 was filed by Guddu Maharaj.
On companypletion of investigation, charge sheet was submitted against all the three accused, including the appellant on 31.3.2005.
Following the appellant, his two employees, namely Kanki Vishnu and Guddu Maharaj, who were present there at that time, were also subjected to personal search and from the possession of Kanki 100 grams and from Guddu Maharaj 35 grams smack powder was recovered.
The samples were sent back to the FSL on March 14, 2005, after necessary companyrections in the draft and or giving reply to the query and on that date the samples were accepted at the FSL.
The trial companyrt by judgment and order dated 9.11.2005 passed in Special Case No.4/2005 held all the three accused, including the appellant guilty of offences punishable under Sections 8/21 b of the NDPS Act and sentenced them as numbered above.
From the seized powder, two samples of five grams each were taken and were put in two separate sealed packets marked as Article A and A1.
Both were declared hostile by the prosecution.
The FSL report came on March 21, 2005, and on that basis the police submitted charge sheet against the accused on March 31, 2005, but the alleged narcotic substance that was seized from the accused, including the appellant was deposited in the Malkhana about two months later on May 28, 2005.
On hearing Mr. Akshat Shrivastava, learned companynsel for the appellant and Ms. Vibha Datta Makhija, learned companynsel for the State and on going through the materials on record, we find there are several features in this case that make it very difficult for us to sustain the companyviction of the appellant.
The remainder 165 gram was put in a separate sealed packet marked as Article A 2.
The plastic packets companytained smack powder, the total weight of which was 175 grams.
Both the trial companyrt and the High Court had, therefore, to rely upon the testimony of K. Jharkhandia, PW 10 who was the Station House Officer at the material time and who had companyducted the raid to accept the prosecution case of recovery of the suspected narcotic from the accused.
The suspected narcotic recovered from the appellant was seized under seizure memo, Exhibit P.22.
The High Court dismissed both the appeals by judgment and order dated April 17, 2008.
Charges were framed against the accused and they were put on trial.
The appellant alone has companye in appeal against the judgment of the High Court.
From the time of the seizure in the late evening of March 8, 2005, till their deposit in the FSL on March 14, 2005, it is number clear where the samples were laid or were handled by how many people and in what ways.
The FSL report, Exhibit P.32 companyfirmed that the samples companytained diacetylmorphine heroin .
Against the judgment of the trial companyrt, the appellant preferred Criminal Appeal No.2511/2005 before the High Court.
There is, however, numberindication that the third accused Kanaki took the matter in appeal.
The samples taken from the seized substance were sent to FSL on March 10, 2005, along with the draft, Exhibit P.31.
PW.8 was, as a matter of fact, quite emphatic in his denial of any recovery having been made from the appellant or the other accused in his presence.
The seizure of the alleged narcotic substance is shown to have been made on March 8, 2005, at 1145 in the evening.
To begin with, there were two independent witnesses of the seizure, namely, Ajay Purohit and Udaipal Singh whose signatures were taken on the seizure memos, Exhibits P.22 to 24.
After companypleting the formalities, the police party proceeded to the cinema hall where the Town Inspector, companyplying with the mandate of the law, subjected the appellant to a personal search.
The seizure witnesses turning hostile may number be very significant, as it is number an uncommon phenomenon in criminal trials, particularly in cases relating to NDPS but there are some other circumstances which, when taken together, make it very unsafe to uphold the appellants companyviction.
The samples sent for forensic examination were, however, number deposited at the FSL on that date but those came back to the police station on March 12, 2005 due to some mistake in the draft or with some query in respect of the draft.
Neither of the two supported the case of the prosecution.
They were examined before the Court as PWs 8 and 9 respectively.
Aftab Alam, J. The appellant stands companyvicted under Sections 8/21 b of the Narcotics Drugs Psychotropic Substance Act, 1985 hereinafter referred to as the NDPS Act and sentenced to undergo rigorous imprisonment for 7 years and a fine of Rs.25,000/ with the direction that in default of payment of fine, he would undergo rigorous imprisonment for a further period of one year.
