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2017 (12) TMI 1512 - HC - Indian LawsSmuggling - opium - Section 23(c) of the NDPS Act - acquittal of offence - rigorous imprisonment for a term of 12 years and a fine of ₹ 1,00,000/- with default clause - the prosecution case is that on information about a criminal, the police has raided the place and there was no prior information about the opium being kept by the accused appellant - Held that: - In the present case there is absolutely nothing is available to show as to whether direction issued vide Standing Order No. 1 of 1989 or provisions of Section 52A of the Act have been complied or not - Further there is nothing available to show as how much quantity was taken from each packet and as whether it was properly sealed prior to sending it to the FSL. No doubt, in the present case, the informant has no prior information regarding the contraband to be kept by the accused appellant. In such a situation, there is no requirement for compliance of Sections 42 and 50 of Act. However, at the same time, once he came to know about having contraband in possession of the accused, he ought to have informed the superior officer about the same and he ought to have proceeded in accordance with the provisions under the NDPS Act but neither he has informed the superior officer as provided under Section 57 of the Act nor he has followed the provisions of Section 55 regarding taking charge of articles seized and delivered nor there is compliance of provisions of Section 52A of the Act or the Standing Orders issued under the aforesaid Act. Neither the recovered seized articles nor the samples and remaining of the samples sent back by the FSL has been produced before the court nor there is anything to show that it has been kept in Malkhana and there is also nothing on the record in support of the same, neither Malkhana register has been poduced nor Malkhala In-charge has been examined in the present case, which appears to be essential in this case. The trial court has not considered the aforesaid aspect of the matter and only being swayed by evidence of the police officers, coupled with the fact that recovery of opium and the opinion recorded he had convicted the appellant under Section 18(b) of the Act - the impugned judgment of conviction suffers from several inconsistencies, discrepancies and cumulative effect of the above discrepancies and infirmities certainly dented the finding of guilt recorded in the impugned judgment of conviction. Hence it does not appear to be sustainable in the eye of law. The judgment of conviction and the order of sentence of the appellant are set aside - appeal allowed.
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