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2014 (1) TMI 586 - HC - CustomsConviction under NDPS Act - Search and seizure of Contraband article - Non fulfillment of requirement u/s 42 - Trial Court sustained conviction - Held that:- appellant was arrested by the raiding party with contraband article though was arrested from a public place but they were having a wireless set with them but they did not make any effort even to partially comply with the mandatory provisions of Section 42 of Act appears to be correct as from the evidence of the P.W. 1 and P.W. 2 it is apparent that they had admitted before the trial court in their evidence that they did not inform the superior officers about the arrest of the appellant with contraband article nor they even tried to incorporate the same in the G.D. of the concerned police station when they had reached with the appellant along with the recovered article at the concerned police station. The instant case appears to be a case of totally non compliance of the mandatory provisions of Section 42 of the Act. In a prosecution relating to the NDPS Act, the question as to how and where the samples had been stored or as to whom they had been dispatched or received in the laboratory is a matter of great importance on account of the huge penalty involved in these matters. Thus on that count also the conviction of the appellant by the trial court is not sustainable in the eyes of law - From the record it is further evident that the alleged sample did not bear any signature or thumb impression of the appellant and the offence under the N.D.P.S. Act is a technical offence and the safeguard in the enactment requires strict compliance. Failure, in the evidence by the prosecution witnesses, to show that when the sample were taken from the same contraband article creates doubt on the authenticity of the prosecution case. In this connection the absence of signature of the accused on the sealed bag raises doubt about the recovery of contraband article from the possession of the appellant. 29 packets have been recovered from a white bag with which the appellant was found sitting and the appellant has stated the contraband article weighed about 25 Kgs. Charas but P.W.1, who had made the arrest and seizure of the appellant did not weighed the contraband article recovered from him and only on the statement of appellant it was believed to be 25 Kgs. Charas and no actual weight was taken by P.W.1 which further creates doubt whether the alleged contraband article was the same which was recovered from the possession of the appellant and sent to chemical analysis - it is apparent that the recovery of the contraband article from the possession of the appellant appears to be doubtful and the prosecution has not proved its case beyond reasonable doubt against the appellant proving the recovery against him in strict compliance of the provisions of N.D.P.S. Act, hence his conviction and sentence by the trial court is not sustainable in the eyes of law - Decided in favour of appellant.
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