Alok Verma, J.@mdashThis criminal appeal arises out of conviction and sentence passed by learned Special Judge, Neemuch under Narcotics Drugs and Psychotropic Substance Act (hereinafter referred to as "the Act") in Special Sessions Case No. 38/2006 by the impugned judgment dated 05.11.2007 whereby, learned Special Judge convicted the present appellant under section 8/18 (b) of the Act and sentenced him to undergo RI for 10 years with fine of Rs.1,00,000/and in case of default of payment of fine, the appellant was further directed to undergo RI for one year.
2. According to the prosecution story, on 31.08.2006, Piyush Charles (PW8), Incharge of Police Post, Nayagaon, received an information through the informant that the present appellant was transporting contraband Opium in vehicle bearing registration No.RJ09UA0098 and he is coming towards Neemuch. He is transporting the contraband Opium for its delivery to an outside smuggler. On receiving such information, Piyush Charles (PW8) completed all the formalities and proceeded towards Old Toll Tax Post with the police force. There, on seeing the vehicle approaching, he, with the help of police force intercepted the vehicle. During the search of the vehicle, 10 kg Opium was found under the seat of the driver, which was seized after completing all the formalities by Piyush Charles (PW8). The contraband was sealed in three packets and the main packet containing bulk quantity of the contraband was marked as Article A while, two samples of 30 gms. each were marked as ArticleA1 and A2. The samples were sent for examination and after completing investigation, chargesheet was filed.
3. After recording the evidence of the prosecution and the defence, learned Special Judge found the appellant guilty under section 8/18 (b) of the Act and sentenced him as aforesaid. Aggrieved by which, the present appeal is filed on the grounds, inter alia, that the seized contraband was not produced in the Court and, therefore, recovery of the alleged Opium from the possession of the present appellant was not proved. No independent witness supported the prosecution case and in such circumstances, sole statement of the Investigating Officer cannot be relied upon.
4. During the arguments, the main thrust of the defence counsel was on the fact that the contraband Opium was not produced by the prosecution before the Court. It was not marked as article and, therefore, the present appellant deserves to be acquitted.
5. Before proceeding to examine the case law produced by the learned counsel for the appellant, we may examine the record of the trial Court to assure whether, the contraband Opium was produced before the Court during trial and whether, it was marked as article by the learned Special Judge. Piyush Charles (PW8) was examined by the learned Special Judge on 25.09.2007. In the examination chief of this witness, it is nowhere mentioned that the contraband Opium or its samples were produced before him. The sealed packets were opened and the contraband was shown to him. It is also not mentioned in the examination chief of this witness that the contraband was marked as article during his examination, however, corresponding ordersheet dated 25.09.2007 mentions as under:"
6. From the ordersheet, which must be relied at this stage, it is apparent that the seized Opium was produced before the Special Judge during examination of the Investigating Officer Piyush Charles (PW8). However, as stated earlier, the samples or the remaining bulk quantity was not marked as article and, therefore, it is apparent that the defence did not get an opportunity to cross examining the Investigating Officer on this point.
7. Learned counsel for the appellant relies upon the judgments of this Court passed in Criminal Appeal No. 1085/2008 in the case of Pokarram Vs. Union of India, Central Narcotics Bureau dated 08.12.2009 and passed in Criminal Appeal No. 436/2008 dated 04.01.2010 in the case of Beer Balram Vs. Central Bureau of Narcotics. In both the judgments, reliance was placed on the judgments of Hon''ble the Supreme Court in the case of
8. In the case of Jitendra (supra), Hon''ble the Supreme Court observed that:
In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchanama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchanama is nothing but a document written by the concerned police officer. The suggestion made by the defence in cross-examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with police had lodged a false case only for evicting the accused from the house in which they were living. Finally, we notice that the Investigating Officer was also not examined. Against this background, to say that, despite the pancha witnesses having turned hostile, the non-examination of the Investigating Officer and nonproduction of the seized drugs, the conviction under the NDPS, Act can still be sustained, is far fetched.
9. In that case also, Panch witnesses were turned hostile. They did not support the prosecution case.
10. Similarly, in the case of Beer Balram (supra), this Court observed that when, the panch witnesses turned hostile, placing reliance on the sole testimony of Investigating Officer is not safe. It was also observed that the formalities under section 52A of the Act was completed before learned ACJM, Jawad. Similarly, in this case, formalities under section 52A of the Act were completed before the Executing Magistrate, Jawad. The ordersheet of the Magistrate is Ex.P38. The contraband was handed over back to the Station Incharge CL Jatav. However, after receiving the material, whether the bulk quantity was disposed of under the provision of section 52A of the Act is not clear, though, as stated earlier, during the cross examination of the witnesses, the same was not produced before the Court and was not marked as article. Thus, not producing the contraband before the Court and not affording an opportunity to the defence to cross examine the Investigating Officer on this fact is fatal to the prosecution.
11. So far as turning hostile all the independent witnesses are concerned, in this regard, learned counsel for the appellant has cited the judgment of this Court in the case of Jamal Ali Vs. State of MP reported in 2006 (I) MPWN (16). In this case, it was held by the Court that when, seizure witness did not support the case of the prosecution, the basing conviction on sole testimony of the Investigating Officer is not safe.
12. Applying the principle laid down in aforementioned cases on the facts of the present case, I find that in the present case, independent witnesses did not support the proceedings taken up by the Investigating Officer Piyush Charles (PW8). The other independent witness was not examined. The seized contraband was not produced before the Court during trial and, therefore, the case against the accused person is not proved.
13. At this stage, it may also be observed that not producing the contraband before the Court is a technical irregularity which may be cured. Option is available before the Court to remand the case back to the trial Court for removing such technical lapse. However, in the present case, record of the lower Court shows that the present appellant was arrested on 31.08.2006 immediately after the incident and he remained in custody till the judgment was pronounced on 05.11.2007. Thereafter, his jail sentence was not suspended and, therefore, he is still under custody continuously from 31.08.2006. The total period under custody comes to 8 years and 4 months. He was convicted by the trial Judge for 10 years R.I. and, therefore, only period of one year and eight months is left to complete the sentence awarded on him. Remanding back the case to the trial Court would take minimum 6 to 9 months and this would frustrate the purpose and in my opinion, no benefit would arise in remanding the case back to the trial Court.
14. Accordingly, this appeal is allowed. The conviction and sentence passed by the learned Special Judge in the impugned judgment on the present appellant under section 8/18 (b) of the Act is set aside. He is acquitted from the charges under section 8/18 (b) of the Act. The trial Court is directed to release the appellant forthwith if, his presence is not required in any other case. The fine amount, b if any, deposited by the appellant shall be returned to him. The seized vehicle bearing registration No.RJ09UA0098 shall be returned to its registered owner.
C.c as per rules.
