Pankaj Naqvi, J. - (1.) Jang Singh and Paramjit Singh have preferred this appeal against the judgment and order dated 7.7.2012 in S.T. Nos.77 & 78, both of 2011 (Case Crime Nos. 146 & 147 of 2011), passed by Addl. Sessions Judge (Court No.10), Mathura, convicting and sentencing them under Section 18 (b) of the NDPS Act to 10 years R.I along with fine of Rs.1 lac each and a default sentence of one year. The prosecution case unfolds as under : (i) P.W.-2 / S.H.O and P.W.-1 / S.I along with S.I Veeresh Kumar and 5 constables (not examined) including driver on 30.3.2011, left the P.S concerned in their official vehicle at about 16.15 hrs, to ensure peaceful conduct of ongoing exams and also to carry out patrol duty, while they were enroute to Karan Singh Inter College on N.H. 2, they noticed 2 vehicles, Scorpio (red) and Sonalika (white) coming from opposite directions, drivers upon seeing police vehicle, wanted to take a "U"-turn, in hot-haste but both the vehicles fell in the adjoining ditch, throwing a possibility of a suspicious movement, the police nabbed the drivers at 16.40 hrs who disclosed their names as Jang Singh of Patiala (Driver of Scorpio HR 61 5256) on whose frisking, Rs.1000/- was recovered and the other as Paramjit (Driver of Sonalika), also from Patiala from whose possession Rs.1200/- was recovered. On inquiry, as to what prompted them to flee, drivers confessed that their vehicles are laden with bags of doda powder (poppy straw). The accused were informed of their right of being frisked in compliance of Section 50 of the NDPS Act, which they refused. Upon search of Scorpio vehicle, 4 sealed jute bags were recovered from the dicky, on opening the same, it was found to be that of doda powder / poppy straw. Similar search was made of Sonalika, wherein too 4 sealed jute bags were recovered from the dicky containing doda powder, beneath the seat, 4 number plates, HR 16G 9029 (2) and HR 51S 5060 (2) were also recovered. Efforts were made to involve independent public witness to authenticate seizure but despite crowd, no one came forward. Search memo was prepared by P.W.-1 at the dictates of P.W.-2. Paramjit stated that registration no. HR 16G 9029 is the genuine registration number of his vehicle and similarly registration no. HR 51 S 5060 is the genuine registration no. of the Scorpio. They also confessed that whenever they indulge in illicit trade, they use fake number plates. The accused were also called upon to show the vehicle documents, including the R.C of the vehicles, whereupon insurance paper of one Suman Varma, resident of 302, Om Enclave, Faridabad (Haryana), bearing registration no. HR 51S 5060 and from Sonalika vehicle, two driving licences, one issued by the Punjab Government with DL No. 40966/CDT/DTO/01/03 with the name of Paramjit, S/o Sewa Ram, R/o Guljapura, Patiala and the other issued by State of H.P was DL No. 76962/2007 which bore the name of Paramjit Singh, S/o Mewa Ram, R/o Baba Balak Nath Road, Puna, M.P. The accused confessed that they were in transit from Bharatpur (Rajasthan) to Patiala (Punjab), carrying on the said trade to earn their livelihood. Constable Ashok Kumar (not examined) was sent to get measuring scale and weights, whereupon 200 gms of sample each in 2 polythene bags was obtained, followed by seal of the bags. Each bag contained around 40/41 kgs. of doda powder. All the incriminating articles were taken in possession and accused taken into custody. (ii) On the basis of seizure memo, an FIR came to be registered at the police station concerned on 30.3.2011 at around 18.05 hrs as Case Crime Nos. 146 & 147 of 2011 against the appellants, under Sections 8/18/25 NDPS Act and Sections 420/468/471 IPC. (iii) 2 seized samples of 200 gms each of the contraband were sent to FSL, Agra for analysis, wherein reports (Exts. Ka 6 & 7) dated 21.5.2011 confirmed that the contraband was "doda powder". After investigation, charge-sheets (Exts. Ka 4 & 5) came to be submitted against the appellants for above offences before the court on 18.5.2011, on which cognizance was taken. (iv) The appellants were put on trial with the framing of charges under Sections 18(b) of the NDPS Act and 420/468/471 IPC. (v) During trial, prosecution examined 4 witnesses. P.W.-1 / S.I, scribe of the seizure memo, present at the scene, P.W.-2, the S.H.O on whose dictates, seizure memo was prepared, P.W.-3 / the I.O who carried out investigational formalities, including filing of the charge-sheets, P.W.-4, on the basis of seizure memo, prepared check FIR (Ext. Ka-8). (vi) The defence did not lead any evidence, but under Section 313 Cr.P.C, claimed false implication on the ground that they could not grease the palm of the police.
(2.) The trial court after evaluating the evidence on record, convicted and sentenced the appellants as above. Heard Sri Apul Mishra, learned counsel for the appellants, Sri Sanjay Kumar Singh, the learned Amicus and the learned A.G.A.
(3.) Learned counsel for the appellants made the following submissions: (i) Seized material was doda power, i.e., poppy straw, thus conviction, could be only under Section 15 of the Act, not under Section 18 which only relates to opium and opium poppy. (ii) Seizure is challenged on the following grounds: (a) Seizure memo is silent as to the presence of doda powder in polypacks which surfaced for the first time at the time of evidence which dents the prosecution case. (b) Process of sampling is challenged on the ground that due process was not followed. (c) During evidence, some of the bags were found to be unopened, coupled with the fact that a representative sample was not obtained from all bags. (iii) Charge-sheet came to be filed before the FSL report, suggesting false implication. (iv) There are material contradictions in the testimony of seizure witnesses and despite presence of crowd, no independent public witness was examined. (v) Although cases have been registered individually against both the appellants, yet a common seizure memo was prepared. (vi) Non-compliance of Section 42(2) and that of Section 57 of the Act, which are mandatory, vitiates the conviction / sentence. (vii) There is no link evidence to establish that whether the contraband produced in the court was the same which was seized.;