SURESH LAL GUPTA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal has been preferred against the judgment dated 5-5-1988, by which, the appellant has been found guilty of the offence u/s.zof the N.D.P.S. Act and sentenced to 10 years' R. I. and a fine of Rs. 1,00,000.00, in default of payment of fine, to further under go one year's R. I.

(2.) According to the prosecution case on 5-3-3987; appellant Suresh Lal was apprehended by Constable Suresh Chand selling charas near Buland Darwaja Dargah. He was brought to the Police Station Buland Darwaja and produced before the S.H.O. with a written report Ex. P5. After receiving the report, the S.H.O. arrested the accused and on search the S.H.O. found the charas in the possession of appellant. The charas was seized vide seizure memo Ex. P3. The recovered charas was sealed and later on sent to the Forensic Science Laboratory for examination and the report of the F.S.L. is Ex. P. 8. The opinion is that the packet contained some dried solid brownish black solid substance and on chemical and microscopic examination the sample was found to be of charas. After completing the usual investigation the Police submitted challan against the appellant. The accused was charge-sheeted u/S. 8/20 of N.D.P.S. Act by the Sessions Judge and after completing the trial he found guilty the appellant of the charge levelled against him and has been sentenced as mentioned above.

(3.) The learned counsel for the appellant argued that the Investigating Officer has not been examined. Suppose that the investigation was done by Suresh Chand Constable then he has no authority to act as an investigating Officer. The S.H.O. who is the I.O. in this case has not conducted any investigation as is clear from his statement. It was also argued that the accused was not asked by the I.O. whether he desires to be produced before any Magistrate or a Gazetted Officer. The formalities which are needed at the time of seizure have not been complied with The independent witness of the seizure has been declared hostile and has not supported the prosecution case, it was also argued that according to seizure memo Ex. P3, the charas weighing 91/2 gram was sealed but, according to the F.S.L. report Ex. P8, the packet which was sent to F.S.L. for examination contained only 7 gram of charas. This difference also creates suspicion in the prosecution case. It was argued that Secs. 42, 50 and 56 of the N.D.P.S. Act have not been complied with. All these provisions are mandatory provisions which provide some safeguard to the accused. If these provisions have not been followed and complied with then the entire case becomes doubtful and benefit of doubt be given to the accused. In support of their arguments they have relied on the cases of Chhotey Lal Vs. State of Rajasthan 1989 Cr. Law Report 1956 and Biram Vs. State 1988 RCC 556 .