TMI Blog2011 (4) TMI 1223X X X X Extracts X X X X X X X X Extracts X X X X ..... f charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the police officer concerned. The suggestion made by the defence in the cross-examination is worthy of notice. It was suggested to the prosecution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplying with the mandate of the law, subjected the appellant to a personal search. The search, made under the Search Memo, Exhibit P.17, yielded three packets from the pocket of the kurta worn by the appellant. The plastic packets contained smack powder, the total weight of which was 175 grams. The suspected narcotic recovered from the appellant was seized under seizure memo, Exhibit P.22. From the seized powder, two samples of five grams each were taken and were put in two separate sealed packets marked as Article A and A1. The remainder 165 gram was put in a separate sealed packet marked as Article A-2. 3. Following the appellant, his two employees, namely Kanki @ Vishnu and Guddu Maharaj, who were present there at that time, were a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hija, learned counsel for the State and on going through the materials on record, we find there are several features in this case that make it very difficult for us to sustain the conviction of the appellant. 8. To begin with, there were two independent witnesses of the seizure, namely, Ajay Purohit and Udaipal Singh whose signatures were taken on the seizure memos, Exhibits P.22 to 24. They were examined before the Court as PWs 8 and 9 respectively. Neither of the two supported the case of the prosecution. PW.8 was, as a matter of fact, quite emphatic in his denial of any recovery having been made from the appellant or the other accused in his presence. Both were declared hostile by the prosecution. Both the trial court and the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eet against the accused on March 31, 2005, but the alleged narcotic substance that was seized from the accused, including the appellant was deposited in the Malkhana about two months later on May 28, 2005. There is no explanation where the seized substance was kept in the meanwhile. 12. Last but not the least, the alleged narcotic powder seized from the possession of the accused, including the appellant was never produced before the trial court as a material exhibit and once again there is no explanation for its nonproduction. There is, thus, no evidence to connect the forensic report with the substance that was seized from the possession of the appellant or the other accused. 13. It may be noted here that in Jitendera and another v. St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court brushed aside the contention by observing that it would not vitiate the conviction as it had been proved that the samples were sent to the Chemical Examiner in a properly sealed condition and those were found to be charas and ganja. The High Court observed, non-production of these commodities before the court is not fatal to the prosecution. The defence also did not insist during the trial that these commodities should be produced . The High Court relied on Section 465 CrPC to hold that non-production of the material object was a mere procedural irregularity and did not cause prejudice to the accused. 6. In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd set aside the judgments and orders passed by the trial court and the High Court. 16. At this stage, it may be noted that though the other two accused, namely, Kanki @ Vishnu and Guddu Maharaj are not before us, we see no reason why the benefit of this judgment may not be extended to them as well. From the possession of Kanki @ Vishnu, the recovered quantity was 100 grams and from Guddu Maharaj 35 grams. All the three accused including the appellant were tried together and the other two accused Kanki @ Vishnu and Guddu Maharaj have also been given the same sentence as the appellant. The lapses in the prosecution and the facts and circumstances that have been noted above and that have weighed with us for setting aside the conviction of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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