V.D. Gyani, J.@mdashThis appeal arises out of judgment and order dated 19.2.97 as passed by the Sessions Judge, Kamrup Guwahati in Sessions Case No. 95(K)94 thereby holding the Appellant guilty of offence punishable u/s 21 of the Narcotic Drugs and Psychotrophic Substance Act, 1985, for short '' the NDPS Act'', and sentencing him to undergo R. I. for 10 years with fine of Rs. 1,00,000/- or in default in payment of fine to suffer 6 months R.I.
2. Prosecution case stated in brief was that on 3rd June 1994 Inspector Alauddin Ahmed of the Excise Department was on his usual rounds of checking at the Railway Station, Guwahati. While checking the passengers at the Railway overbridge he stopped accused Appellant with a suitcase in his hand as his movement arose suspicion. He was checked and searched which revealed that he was carrying 5 packets containing total quantity of l''150 Kg of heroin which was seized as per the Seizure List Ext. I. The matter was reported to his immediate superior. The accused was produced along with the seized articles before the Chief Judicial Magistrate. It is stated that sample weighing 5 gms each were collected in presence of the Magistrate and sent to the State Forensic Science Laboratory for Chemical examination. The report received is Ext. II. The result was positive article of heroin. On completion of investigation the accused was charged and tried for offence punishable u/s 21 of the NDPS Act. The first question as rightly posed by the trial Court is, whether the articles seized was Heroin a manufactured drug as defined in Clause (xi) of Section 2 of the NDPS Act. The trial Court placing reliance on evidence of PWs 5, 6 and 7 has held that the articles seized from the possession was heroin.
3. learned Counsel appearing for the Appellant has assailed the findings mainly on the grounds that there was no sealing of the Articles when it was actually seized and there is no evidence adduced by the prosecution to show that the article seized from the possession of the accused remained intact till it was produced before the Magistrate and, thereafter sent to and received by the State Forensic Science Laboratory. There is not a slightest whisper in the evidence of PW 5 that the sample as received by him was intact and the seals thereon tally with any specimen seal impression separately sent to the Forensic Science Laboratory.
4. Mere reading of the evidence of PW 6 and PW 7 would go to show that they are referring to the transaction on 6.6.94 whereas the prosecution case that accused was checked on 3.6.94 around 7 A.M. at the Overbridge of the Railway platform and Guwahati Railway Station. It was on the 4th day when the Article was produced before the Chief Judicial Magistrate. There is absolutely no evidence as regards officer who retained the custody of the seized article and in what condition it was kept by him. It was for the prosecution to have proved by adducing affirmative evidence that the articles as seized on the 3rd morning remained intact and untempered till it was produced before the Magistrate on 6.6.94, but no such evidence is forth coming. There is not a word in the evidence of the Inspector PW 1 as to what prevented him from sealing the seized article immediately on its seizure. If it could not be done at the Overbridge at least it could well have been done and ought to have been done in the office or the Railway Police Station immediately after the seizure. Keeping the seized articles for 3/4 days and thereafter producing the same before the Magistrate hardly inspite any confidence. PW/6 the Deputy Superintendent of Excise in his evidence has stated that a sealed VIP suit case was produced by the Inspector PW 1 before the Chief Judicial Magistrate on 6.6.94 and he was called by the Magistrate to take photograph. What transpired thereafter is a mere rehersal of a farce, it is stated by the PW 6'' that the box was opened in presence of the Magistrate who has not been examined by the prosecution and 5 samples were taken. They were weighed and sealed and the box was resealed. PW 7 is yet another Excise Inspector who weighed the samples. Surprisingly enough none of these witnesses say a word as to what that seal was and what was the seal affixed on the suitcase''. There is absolutely no hint about the nature of seal either on the sample packets or the suit case. While PW 6 the Deputy Superintendent of Excise speaks of production of sealed VIP suit case it is not even the claim of the Inspector PW 1 that he had sealed the VIP suit case at the time of search of the accused and seizure of the articles. Learned Sessions Judge has missed this inherent infirmities in the prosecution case what is claimed to have been done on 6th in presence of the Magistrate, ought to have been done at the time of seizure of the article, but nothing of the sort was done nor any evidence adduced that the articles seized were kept intact so as to rule out any possibility of being tempered with.
5. In a similar circumstance arising in
...It is the admitted case of the prosecution that the samples changed several hands before reaching the public analyst. In other words, the samples remained in the custody of S.I. Adanam, P.S. Udai Mandir, Nathu Singh, Gajraj Singh, Jawan Singh and the Assistant public analyst and yet none of these witnesses were examined by the prosecution to prove that while in their custody the seals were not tampered with. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the samples being changed or tampered with during this period- a fact which had to be proved affirmatively by the prosecution. This is the main infirmity which has been relied upon by the High Court in holding that the prosecution has not proved that right from the stage of the seizure of the opium up to the time when the samples were handed over to the public analyst the seals remained intact. The prosecution has not taken the Court into confidence in disclosing as to the reasons why the office of the Superintendent of police refused to take the samples. Even though the labels were not in order it was for the prosecution affirmatively to prove that the seals were intact. It is true that Harak Chand and Jabbar Singh have stated that the seals of the samples were intact so long as they were in their custody. But then as pointed out above neither Jawan, Nathy, Gajraj, Aidanram and Assistant public Analyst were examined hence it cannot be said that the prosecution has proved all the links starting from the seizure of the samples till the same reached the hands of the public Analyst so that the Court could conclude that the seals remained intact throughout. The High Court in view of this serious lacuna was of the opinion that the prosecution has not proved beyond reasonable doubt that the opium seized was the opium which was sent to the public Analist. In fact the prosecution realized its mistake and at the fag end of the trial an application was made u/s 540, Code of Criminal Procedure to examine Nathu Singh, Gajraj Singh and Jawan Singh. This application was rejected by the learned Magistrate. Even before the High Court the stand taken by the counsel for the State was extremely vacillating and at one time he filed an application for additional evidence and some time later chose to withdraw it. It is obvious that the onus is on the prosecution to prove the entire case at the trial and the prosecution could not be allowed to fill up the gaps or lacunae left at the trial, at the appellate or revisional stage. In these circumstances we do not find any error of law in the view taken by the High Court. We find no merit in this appeal which is accordingly dismissed.
6. Although the learned Counsel appearing for the Appellant has also raised the question of non-compliance of Section 50 of the Act, which is now held to be mandatory by the Apex Court in several judgments, going by the evidence of PW 1 it is abundantly clear that no thought whatsoever was given to the compliance of Section 50. The seizure list Ext. I which is in Assamese was admittedly not explained to the accused and it is also admitted by the PW2 Asstt Excise Inspector that the accused do not know Assamese. There is an apparent discrepancy about the suit case itself. While in Ext.4, the detailed description of seized articles, it is mentioned as Aristrocarte of light green colour, the D.S.P. PW 6 in his evidence has stated that it was a VIP suit case. The PW 2 merely refers to brief case without specifying its brand name. All these witnesses are not rustic villagers, they are responsible officers of the Excise Department and expected to differentiate between a suit case and a brief case and its brand name. There are three different versions about the same articles claimed to have been seized from the accused. It is the prosecution''s case that the accused was intercepted and checked at 7 a.m. The PW 4, the only independent witness examined by the prosecution has given the time as 9 a.m. When he had come to the Railway Station to collect passengers. He could not even identify the accused in the dock. He is a mere signatory to the Ext.1 which he signed at the G.R.P. Thana. This witness has not even been declared hostile by the prosecution. Thus, leading the defence to the plea that the version as given out by him was acceptable to the prosecution. Otherwise, nothing prevented the prosecution from declaring him hostile, which has not been done in the instant case. The total evidence is that of the Excise personnels. The solitary eye-witness who was made to sign Ext.1 at the G.R.P. Police Station has not supported the prosecution case. It is not as if any independent witness was not available. There were many passengers coming and going but none of them except the Excise staff has been examined. It is not to suggest that a person in uniform is not a reliable witness, but in the peculiar facts of the case where other independent witnesses examined by the prosecution has not supported the prosecution case nor he has been declared hostile. It is difficult to hold that the prosecution has succeeded in bringing home the charge to the accused. Apart from the non-compliance of Section 50 and the failure on the part of the prosecution to prove by adducing affirmative evidence that the articles as seized from the accused were kept intact and untempered. Even the evidence, taken on its merit is not such as to prove the charge beyond reasonable doubt.
7. For the foregoing reasons the conviction and sentence as recorded by the trial Court is liable to be set aside, it is accordingly set aside. The accused-Appellant is acquitted "of the charge framed against him. Fine, if paid or deposited be refunded to the accused Appellant. He be set at liberty forth with unless otherwise wanted in connection with some other case.
Appeal allowed.
