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2018 (10) TMI 1709 - HC - Indian LawsSmuggling - recovery of contraband doda powder or not - whether the prosecution has been able to establish the charge beyond reasonable doubt against the accused? HELD THAT:- When asked about possession of the contraband, the accused admitted the same, then option was given to him if he wishes to be searched in the presence of the Magistrate or a Gazetted Officer, which he declined and reposed trust in the police party itself, then search was made. On search being made seven polythene packets were recovered from inside the white sack. On weighing the seven recovered packets, the aggregate weight of the contraband/substance was found to be 10 kg in all - Here, it can be observed that the search cannot be confined to the search of the person as is the case herein in hand because it was the sack recovered from the hand of the accused which the accused was holding at the time of his apprehension by the policestrictly speaking this aspect removes doubt regarding factum of search of person. o far as, fact of safe conveyance of the sample to the Forensic Science Laboratory is concerned, that very aspect, has been satisfactorily proved by Constable Shamsher Ahmad PW2. He has categorically stated that he obtained the sample from the police station and took the same to the Forensic Science Laboratory, Agra and entry of the same was noted in the General Diary of date 14.01.2007 at Serial No.16 at 8:20 hours. Similarly, the entry of return journey was also noted in the concerned General Diary at Serial No.29 of date 17.01.2007 at 2:50 p.m. He has categorically stated that the substance was taken in safe and sealed condition to the Forensic Science Laboratory and no tampering was made and it was so handed over at the Forensic Science Laboratory. Therefore, on the point of sampling of the contraband substance and safe conveyance, the testimony inspires confidence and there is nothing, which may create any doubt regarding noncompliance of mandatory provisions of the N.D.P.S. Act so as to render the same doubtful. The imposition of sentence for 15 years is justified and the same legal aspect has been rightly taken into account by the trial court while imposing sentence on the appellant - it cannot be said that the enhanced sentence is violative of the provisions of the N.D.P.S. Act. Appeal dismissed.
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