- (1.) THE instant appeal has been preferred by the appellant Netram against the judgment dated 29.8.2008 passed by the learned Special Judge, NDPS Act Cases, Hanumangarh in Sessions Case No.56/2005 whereby he was convicted for the offence under Section 8/15(c) of the NDPS Act and was sentenced to undergo eleven years' rigorous imprisonment and a fine of Rs.1,00,000/ -. In default of payment of fine, he was further directed to undergo two years & six months' simple imprisonment.
(2.) SUCCINCTLY stated, the facts of the case are that Mahendra Dutt PW8 posted as the S.H.O. at the P.S. Bhirani, was on patrolling duty on 11.10.2005. He received an information at about 4:00 P.M. that the appellant was indulged in illegal trade of contraband poppy straw. The informant reported that the appellant had concealed two bags of poppy straw in his house and was on the look out to sell the same. The information was taken down in writing and a copy thereof was sent to the Circle Officer, Nohar. Thereafter, the S.H.O. summoned two motbirs and proceeded to the house allegedly owned by the appellant in the Village Gandhi Badi. It is said that a person was seen standing in front of the house. On asking his name, he revealed his identity as Netram s/o Om Prakash r/o Gandhi Badi, the appellant herein. He was informed about the source information and after taking his consent, the S.H.O. entered the house. It is alleged that a room/store was seen on the terrace of the house. The approach door of the terrace was locked. The appellant allegedly provided the key of the lock. Two jute bags full of some material were seen lying in the room. The bags were opened and on tasting and smelling the material, it gave poppy straw like flavour. The appellant could not show any license or permit etc. for being in possession of the contraband. On the personal search of the accused being conducted, a live cartridge was found in his pocket. The accused was arrested. The gunny bags were weighed by a spring balance and each bag was found to be weighing 40 kgs. including the weight of the packing material. The S.H.O. thereafter mixed the contents of both the bags on the terrace and collected two samples of 500 grams each from the admixture. After taking out the samples, the contraband poppy straw was re -packed in the same bags and the samples as well as contraband were sealed. On the basis of the recovery, an FIR No.181/05 for the offence under Section 8/15 of the NDPS Act was registered against the appellant and investigation commenced. After completion of investigation, the police filed a charge sheet against the appellant for the aforesaid offence. The trial Court framed charge against the appellant for the offence under Section 8/15 of the N.D.P.S. Act. The appellant pleaded not guilty and claimed trial. The prosecution examined nine witnesses in support of its case. The appellant, in his statement under Section 313 Cr.P.C., denied the prosecution story. The learned trial Judge at the conclusion of the trial proceeded to hold the appellant guilty of the offence under Section 8/15(c) of the NDPS Act and sentenced him as above. Hence this appeal. Shri R.K. Charan, learned counsel for the appellant, has limited his arguments to two points for challenging the impugned judgment. He submitted that : (i)the procedure of sampling adopted by the S.H.O. was illegal, improper & impermissible and thus, the appellant's conviction is vitiated. He submitted that the recovered material was found packed in two separate gunny bags weighing 40 kgs. each. He contended that rather than taking out exclusive samples from each gunny bag, the seizure officer mixed the material packed in the two gunny bags and then collected the samples which were forwarded to the F.S.L. Learned counsel urged that by the procedure adopted, it would not be possible to arrive at a satisfaction that both the gunny bags contained contraband poppy straw.
(3.) HE submitted that for the purpose of proving that the article packed in each of the gunny bags was poppy straw, the seizure officer was required to collect separate individual samples from each gunny bag and forward the same to the F.S.L. He submitted that failure to collect exclusive samples from both the gunny bags caused great deal of prejudice to the accused and he is entitled to claim that both the gunny bags were not having poppy straw. In support of his submissions, learned counsel for the appellant placed reliance on the decision rendered by the Hon'ble Apex Court in the case of Union of India. vs. Bal Mukund and ors. reported in 2009 Cri.L.J. 2407 and on the decision rendered by this Court in the case of Ghewar Ram. vs. State of Rajasthan reported in 2007(2) Cr.L.R. (Raj.) 1695. (ii)The second limb of his argument was regarding the house from where the recovery was effected not being in the exclusive possession of the accused. Learned counsel for the appellant submitted that the Investigating Officer PW9 Narendra, Circle Officer, admitted in his cross examination that the house from which the recovery was effected was jointly occupied by the accused, his parents, his brothers and sister. He submitted that the prosecution has failed to prove that the recovery was effected from the premises in exclusive possession of the accused. He thus submitted that the accused is entitled to acquittal because the prosecution could not prove that the recovery was effected from a place in the exclusive and conscious possession of the accused.;