9911796707
TMI Blog2012 (7) TMI 1115X X X X Extracts X X X X X X X X Extracts X X X X ..... RI for a period of ten years and to pay fine of Rs. 1.00 Lac and in default of payment of fine, he shall further undergo SI for one year. The benefit of Section 428 Cr. P.C. has also been extended to him. 3. The brief facts of the case are that on 24.09.2003, a secret information was received that the appellant was carrying charas at a given place and at a particular time. Accordingly, a raiding team was constituted and the appellant was caught allegedly carrying 3.5 KGs of charas on 24.09.2003 at 02:00PM. 4. Further, the case of prosecution that he was carrying a green coloured polyethene bag which contains 8 smaller polyethene bags having black colour substance. 5. Accordingly, two samples of 25 Grams each were made after braking char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;ble Apex Court has held that the other piece weighing 7 grams could not be inferred to be charas. Accordingly, the accused was sentenced only for possession 5 grams of charas. 10. Learned counsel has further relied upon Javed A Bhatt v. Union of India: 2007 Cri L J 3145 decided by the High Court of Mumbai wherein it has been held as under:- "In the case at hand, the prosecution did not send all the pieces either in the form of cigars or Hats for analysis but the prosecution remained satisfied only by sending some of such pieces weighing about 50 grams and therefore, applying the principle laid down by the Apex Court it has to be concluded that what the accused was found with, was only 50 grams of charas/hasis and not the entire quantity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be used in a criminal trial which brooks no negligence or doubt! Any remissness, therefore, on the part of Public Analyst in discharge of the aforesaid duties, like naked electric wire permits no mistake to prove fatal! He should also further know that his opinion is admissible merely on the ground that he being an expert. In other words, merely because by virtue of Section 293 of the Code, his report could be admitted in evidence and exhibited without giving evidence before the Court that by itself does not mean that the same is to be accepted straightway as a conclusive proof of evidence against the accused, more particularly when it does not contain even a grain of material indicating on what scientific tests his opinion was arrived at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhagwat Dayal. HC Bhagwat Dayal should have been examined to prove that he received seal after it was used to seal the parcels. 19. To buttress his arguments on the issue, learned counsel has relied upon the case of Satnam Singh v. State : 1997 Cri L J 2067 wherein the High Court of Punjab and Haryana held as under:- "In this case the examination of public witness Arjan Singh had become more essential due to an important link in the evidence of the prosecution to connect the appellant with the offence, i.e. seal after use was handed over to him. It was only Arjan Singh who could have deposed as to whether seal after use was handed over to him and as to when he had returned the same. This was all more important to rule out the possibilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the help of drug testing kit, the same gave positive test for charas. The said recovered charas in all the 8 packets were collectively weighed and it came to 3.5KGs. Small pieces of charas were taken out from all the packets and two samples of 25 grams each were prepared after putting the same into two separate envelope. Both the envelopes were marked as A and B. The remaining contrabands were kept in green coloured polythene and cloth parcel of the same was prepared which was given mark C. FSL form was also filled in at the spot. PW1 put his official seal '5 B PS NB Delhi' on the parcels Mark A to C and FSL form. Seal after use was handed over to HC Bhagwt Dayal. 23. Learned APP further submitted that PW5 Ct.Umesh Kumar has depo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ets were having contraband substance and rest 6 packets did not have any contraband; though all may be of the same colour, when we mix the substances of all 8 packets into one or two; then definitely, the result would be of the total quantity and not of the two pieces. Therefore, the process adopted by the prosecution creates suspicion. In such a situation, as per settled law, the benefit thereof should go in favour of the accused. It does not matter the quantity. Proper procedure has to be followed, without that the results would be negative. 28. In view of above discussion, instant appeal is allowed. 29. Consequently, impugned judgment dated 18.10.2005 and order on sentence dated 21.10.2005 are hereby set aside. Appellant is acquitted f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
