- (1.) PALOK Basu, J. The success of this appeal is dependent more upon the follies of the prosecuting agency than any other as it is well nigh impossible to convict the appellant with the glaring procedural lapses from beginning to the end of the case.
(2.) LAXMI Narain accused has filed this appeal against his conviction under Section 8/17 of the Narcotic Drugs and Psychotropic Substances Act (for short, the Act) and sentence of 10 years' R. I. and a fine of rupees one lac imposed by the judgment of the Sessions Judge, Lucknow, dated 28-1-1988 in Sessions Trial No. 206 of 1988. The facts lie in a very narrow compass. It is said that P. W. 1, V. K. Nada and P. W. 2, Pankaj Gupta, both Inspectors in Customs Depart ment Lucknow with whom were four other persons, two of the Department and two of the public, having received an information through an informer, were deputed to search the thela kept by the appellant near about Prestigious Coaching School, Lucknow on 23-12- 1985 at 7 p. m. From the belt (PHENTA) of the appellant 11 small packets (PURIAS) were recovered which, according to the opinion of the Raiding Inspectors, contained heroine. The total number of 11 purias weighing 9. 500 grams valued at Rs. 950. A seizure memo was drawn which indicates the aforesaid recovery and has the signaturejof the appellant. It is said that the appellant had voluntarily made statement con fessing his guilt. The appellant consequently was produced before the Chief Judicial Magistrate, Lucknow who was remanded to jail custody. It is not known what happened to the recovered heroine. The record is absolutely silent. A complaint appears to have been filed by Sri M. A. Hamid alleging himself to be Assistant Collector, Central Excise disclosing therein that he is one of the empowered officer to file such complaint. The Chief Judicial Magistrate, Lucknow took cognizance of the complaint and draw committal proceedings whereafter by an order, dated 23-6-1986 committed the case to the Court of Sessions.
(3.) THE trial was numbered as Sessions Trial No. 206 of 1986 and com menced before the learned Sessions Judge himself. After framing of the charge on 9-4-1987 the prosecution was permitted to produce evidence. During the trial only two witnesses have been examined and they are P. W. 1. V. K. Nanda and P. W. 2, Pankaj Gupta. None of the four other persons namely Sri G. P. Bhagat, Sri A. K. Dixit (Both of the department) and Maina and Radhey belonging to the public have been examined. At this stage it appears that the alleged recovered packets eleven in number were got exhibited in the Court of the Sessions. Cross-examination of P. W. I was perhaps directed to challenge the very factum of the recovered articles being Narcotic Drug or a Psychotropic Substance. Inference to the relevant evidence will be made here inafter. On 25-5-1987 the prosecution moved an application which contains the following prayer : "therefore, it is humbly prayed that in the interest of justice and to the just decision of the case the Hon'ble Court may kindly be pleased to send the exhibited Heroine as a whole for chemical analysis. THE learned Sessions Judge passed the following order Called out. Present: Accused with counsel. State applied that the exhibited heroine be sent for chemical examina tion, as a whole. THE witness summoned for today has also not turned up heard. Allowed : THE five purias of heroene be sent for chemical examination and the report be obtained by the date fixed. THE case shall not be adjourned on the date fixed on the plea of non availability of report Fix 7-7-1987 for further evidence. Ultimately the report of the Chemical Analyst appears to have reached the Court of the Sessions Judge saying that five samples were in the form of Brown powder. Each answer test for the presence of diacetylmorphine and was covered under the Narcotic Drugs and Psychotropic Substances Act, 1985. This report is dated 23-6-1987 and has been marked Ext.-Ka 4. The accused appellant, however, objected even at the stage when the prosecution moved this application for getting the samples verified at that late stage and he again objected to the admissibility of the report. These applica tions were decided by the Sessions Judge by his order on the ordersheet, dated 11-8-1987. The operative portion of the order speaks thus : "it may be pointed out that evidence should be allowed to be taken if the trial is still continuing and the court thinks fit that the evidence is necessary for proper decision of the case and there have not been great laches on the part of the prosecution in producing a particular type of evidence. In these circumstances, I think there is no harm if the report of the Chemical Examiner is taken on record. How ever, the accused can move the court, if he so wishes, to name the witnesses whom he may like to further cross-examine. Fix. 11-8-8-1987 for further hearing. Sd. v Sessions Judge".;