THANVI, J. - (1.) THIS is an appeal against the judgment of learned Special Judge, NDPS Act Cases, Jodhpur, whereby he convicted accused appellant Ghewar Ram for the offence under Section 8/15 of the Narcotic Drugs & Psychotropic Substances Act, 1985, (hereinafter referred-to as "the Act") and sentenced him to ten years' rigorous imprisonment and to pay a fine of Rs. one lac and in default, to further undergo one year's R. I.
(2.) THE Charge against the accused was that on 9-4-2004 when Shri Rajendra Singh Chaudhary, S. H. O. , Police Station, Khedapa conducted raid on the field at village Kasti Birai, accused Ghewar Ram alongwith Hanuman Ram and Naina Ram were standing there and were counting bags and on seeing the police, Hanuman and Naina Ram ran away from the spot but accused Ghewar Ram was present there. On search, 10 bags were found outside the pit and 22 bags in the pit. In all, there was 519 kgs. poppy straw, for which the accused was having no licence. THE sample of 500 gms. was taken on the spot and after arrest of the accused, the challan was filed against accused Ghewar Ram only, since Hanuman and Naina Ram were absconding. Learned trial Judge framed charge against accused Ghewar Ram for the offence under Section 8/15 of the Act, to which he pleaded not guilty. THE prosecution examined eight witnesses. THE statement of accused was recorded under Section 313 Crpc. He produced Khema Ram (DW 1) in his defence. After hearing the arguments, learned Special Judge convicted and sentenced the accused appellant as above. Learned counsel for the accused appellant has questioned the legality of the judgment of the trial Court mainly on three grounds; firstly according to him, 32 bags which were marked as A-1 to A-32 were not produced in the Court at the time of examination of seizing officer Rajendra Singh Chaudhary (PW 1); secondly he has argued that the samples were taken by mixing all the 32 bags and the sample of only 500gms. was taken, whereas it should have been taken separately from all the 32 bags and the sample so taken, was not sent to the office of the Superintendent of Police, Jodhpur with the seal affixed on it; and thirdly he has argued that in this case, the recovery has been made from the open place at 4. 15 PM on 9-4-2004 but the accused Ghewar Ram has been arrested at 7. 20 PM but in this Ex. P. 11, it has been shown that he was arrested when the recovery memo was prepared. In support of his contention, learned counsel for the appellant has placed reliance on a decision of the Supreme Court in Jitendra and another vs. State of M. P. (2004 SCC (Cri) 2028. In reply, the learned Public Prosecutor has argued that it is not obligatory on the part of the investigating officer to collect the sample from all the bags, since all the bags were mixed and the controlled sample of 500gms. was taken and sent to the Forensic Science Laboratory vide receipt Ex. P. 19. There is a sufficient compliance of Section 55 of the Act. According to him, the time of arrest of accused is immaterial. The most important feature of the case is that as per the statement of Rajendra Singh Chaudhary (PW 1), seizing officer, which is based on Ex. P. 11, the recovery memo, 10 bags were found outside the pit and 22 bags including the `kattas', in the pit. He mixed all the poppy straw at one place and took sample of 500gms from it. Thereafter, he divided that poppy straw in bags marked as A-1 to A-32 vide his recovery memo Ex. P. 11 but these 32 bags have not been produced in the court. The Hon'ble Supreme court in the above referred case has held that non-production of seized drugs (Charas and Ganja) before the trial court caused prejudice to the accused and cannot be termed as a mere procedural irregularity under Section 465 Crpc. In that case, it was further held that if the seized articles are not produced and panch witnesses are turned hostile, specially when the investigating officer was not examined and the letter written by the Superintendent of Police to the State Forensic Science Laboratory (not produced during the trial) cannot be a sufficient proof for convicting accused under Section 20 (b) of the Act.
(3.) IF the present case is looked into in the light of the judgment relied upon by the learned counsel for the appellant, though investigating officer Rajendra Singh Chaudhary has been produced in the Court as P. W. 1 but when a question was asked to him in the cross examination about 32 bags, which were sealed on the spot and marked as A-1 to A-32, he replied that seized articles are not before him in the court. The non- production of the recovered articles which is the basic proof of commission of offence, can be termed not only a procedural irregularity under Sec. 465 Crpc as held by the Hon'ble Supreme Court but also, it is fatal to the prosecution with regard to establishing the identity of a thing, which is relevant in the case. This identification is termed as an exception to the general rule of hearsay evidence because by virtue of Section 9 of the Indian Evidence Act, the facts necessary to establish the identity of a thing, are relevant in so far as they are necessary for that purpose. In this case, the relevant fact is recovery of 32 bags of poppy straw but these bags which were marked and sealed on the spot, have not been produced in the Court, then the presumption which the Court will take is that it will be unfavourable to the prosecution as it has withheld it. This is the law based on illustration (g) of Section 114 of the Indian Evidence Act which says that the Court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Further that apart, there is also non-compliance of Section 55 of the Act because no letter of the S. H. O. written to the Superintendent of Police depositing the Malkhana articles alongwith the seal sample has been produced, except the road certificate Ex. P. 18a which contains only one sealed packet marked `x'. The reference of these 32 articles has been given in Ex. P. 16 which has been proved by Sajjan singh (PW 2) alongwith the entries of the Malkhana register but Sajjan Singh (PW 2) has stated that these articles were deposited in the Malkhana which were 32 in number alongwith two samples, by Rajendra Singh, S. H. O. on 9-4-2004 but in the cross examination, this witness has said that the S. H. O. did not deposit the specimen seal separately and the signatures of Govind, who took the sample, were not obtained. The story of the prosecution further suffers from another lacuna about the time of arrest of accused. According to seizure memo, the accused was arrested on the spot vide Ex. P. 11 at 4. 15 PM but in the arrest memo, it is recorded as 7. 20 PM on 9-4-2004. This further creates a doubt as to whether there was conscious possession of the accused on the field from where poppy straw was recovered. ;