Naseemuddin - (1.) THIS appeal has been filed by Ram Sagar Verma against the judgment and order dated 13.9.1990 passed by Shri Ratnakar Dikshit, the then Vth Additional Sessions Judge, Barabanki in S.T. No. 307 of 1989 whereby the appellant was convicted for an offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (Herein after referred to as the Act), and sentenced him to undergo rigorous imprisonment for a term of ten years and to pay a fine of Rs. one lakh and in default of payment of fine, to undergo further rigorous imprisonment for a further period/term of one year.
(2.) SRI P. C. Rastogi, Amicus Curaie and learned A.G.A. were heard. It appears that on 19.6.1989 at about 4.40 p.m. in village Barauli Police Station, Zaidpur, district Barabanki appellant was arrested by P.W. 1 Bhola Nath, P.W. 2 Ramesh Chandra Dubey and several other policemen and from the possession of the appellant, 520 grams of morphine/heroin, a narcotic drug, was recovered. This recovery was made after some informer had informed the police about the appellant having possession of the narcotic drug. The police intercepted the appellant and then asked him as to whether he wanted to be searched in presence of the Magistrate or a Gazetted Officer or whether he wanted to be searched by the police. The appellant desired the police to effect search on him. From the hand of the appellant, a bag containing the above article was recovered which was weighed and was found to be 520 grams. A part of the article was taken as a sample and was sealed on the spot in a bundle. The 'sample of the seal' was prepared on the spot. The sample was sent for chemical examination to Vidhi Vigyan Prayogshala, Lucknow. Charge-sheet was submitted by P.W. 3 Rama Nand Gupta, S.I., P.W. 5 Rajesh Kumar Tiwari, Constable had taken the article for delivery to the Chemical Examiner, Lucknow. P.W. 6 Om Prakash Gupta, Inspector of the Opium Department, chemically examined the article. The trial court found the case proved and convicted and sentenced the appellant as above. Feeling aggrieved the present appeal has been filed by the appellant. Learned counsel for the parties were heard as mentioned above. The main argument of the learned counsel for the appellant is that in this case, it has been stated by P.W. 1 Bhola Nath Yadav, Police Officer that the article, recovered from the appellant, was sealed on the spot and that a part of the article was also taken out of the main article and was sealed on the spot in a cloth and that a memo of recovery was also prepared. It was also mentioned that when this part of the sample, which was meant to be sent for chemical examination, was sealed, then 'sample of seal' was also prepared. Learned counsel says that this sample, and sample seal of the main article, as well as the sample of seal of the part of the article were not produced during the trial. P.W. 2 Ramesh Chandra Dubey, Police Officer, also stated that 'one' sample of the seal was prepared of the sealed article. P.W. 5, Rajesh Kumar Tiwari, Constable, does not say that he had taken the "sample of seal" with the sample of the article to Vidhi Vigyan Prayogshala, U. P., Lucknow. He simply says that he had taken the 'sealed sample' of the article to the Chemical Examiner. Report dated 24.7.1980 of the Vidhi Vigyan Prayogshala, Lucknow, was not exhibited during the trial of the case. This report shows that the article was not morphine but it was heroin. P.W. 6, Om Prakash Gupta, Inspector of the Opium Department says that when he had examined the article, it was found to be morphine. This report is dated 21.6.1989. This report (Ext. Ka-6) also does not mention that any 'sample of seal' was sent. This report (Ext. Ka-6) prepared by the Inspector of the Opium Department, Barabanki, means that two samples were sent for chemical examination. The department of opium found it to be morphine, whereas the Science Laboratory found it to be heroin. There is evidence of P.W. 1 and P.W. 2, both that 'only one' sample was taken from the recovered article for chemical examination ; and thus it means that two samples were not taken. So it was in two cases that the samples of the article were chemically examined. Recovery was made on 19.6.1989 and P.W. 6 Opium Inspector had examined the article on 21.6.1989. One sample was sent to the Chemical Examiner on 23.6.1989. There was only one sample. It is not explained as to how these two samples of the articles were sent, when only one sample was taken on the spot. Under these circumstances, the argument that the 'sample of seal' was not brought on record and was not proved becomes material. This is also important because in one report, it was mentioned that it was morphine and in the other report, it was clearly mentioned that it was not morphine. Under the Act, these two narcotic drugs are separate and have independent properties respectively. In the present case, three independent persons were also examined in defence by the appellant before the trial court. These three persons are D.W. 1 Amar Singh, D.W. 2 Sardar Ali and D.W. 3 Gaya Prasad. All these three persons have refuted the allegations of the prosecution witnesses about the manner and about the factum of recovery itself. The case of the appellant is also that he was called from the house and was taken to the police station. The prosecution witnesses were also suggested that actually no report was made and no sample was taken and that the case is a concocted one.
(3.) ALL the facts and circumstances and arguments of the learned counsel were considered. It so appears that in the instant case the contradictions created by P.W. 5, P.W. 6 and the two reports, one of the Opium Officer and the other of Vidhi Vigyan Prayogshala, and non-production of the sample of seal have created serious doubts about the story of prosecution and about the recovery. In similar circumstances the Apex Court in the case of State of Rajasthan v. Gopal, (1998) 8 SCC 449, found that in a case where seal of the sample sent to the Analyst was not produced in the Court for verification, then the case was found one of acquittal and the Apex Court held in the circumstances of that case that order of acquittal called for no interference by the Supreme Court. In the present case also the two reports are contradictory to each other. The sample of seal has not been proved to have been sent to the Chemical Examiner or the Opium Inspector. One sample was taken but two reports were obtained. The alleged sample of seal has not been produced before the Court for verification. This all creates serious doubt about the guilt of the accused. Under these circumstances, the trial court should have clearly acquitted the accused and should not have convicted and sentenced him. In the present case, the prosecution failed to prove the charge framed against the accused under Section 21 of the Act and he is not found guilty of the same and is entitled for acquittal. The appeal shall be allowed accordingly. The appeal is allowed. The conviction and sentence under appeal of the appellant are set aside. The appellant is acquitted. The appellant is not in jail. Fine, if deposited, shall be refunded to him. The article alleged to have been recovered shall be destroyed in accordance with Rules.;