Cri. Appeal No. 676 of 1994

1st October, 1999

Petitioner Counsel: Mr. AYAZ R. KHAN
Respondent Counsel: Mr. A. M. SHINGARPURE

Cases Cited:
Thandi Ram Vs. State of Haryana, JT 1999 (3) SC 231 [Para 6]

JUDGMENT

DESHPANDE J.:- Heard the Advocate for the appellant - accused and the learned A.P.P. for the State.

2. The appellant-accused has challenged his conviction under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the N.D.P.S. Act) by which he was convicted under section 21 and sentenced to suffer R.I. for 10 years and to pay a fine of Rs. 1,00,000/- in default to suffer R. I. for 1 year.

3. The counsel for the appellant made three submissions before us. Firstly, according to him even as per prosecution 4 vials i.e. small plastic bottles totally weighing about 5.90 grams were recovered from the appellant - accused, no separate weight of the powder was made and therefore there was no evidence to hold that the accused was in possession of more than a permissible limit i.e. 250 milligrams at the relevant time. Secondly, he submitted that there is no compliance to section 57 of the N.D.P.S. Act. regarding sending of the report to the Seniors within 48 hours, and thirdly that the F.I.R. produced and proved by prosecution witness - I.U. (Sic. F.I.R.) is suspicious because there is no acknowledgment nor any time of lodging the same.

4. So far as the first point is concerned we got the muddemal property i.e. 4 vials before us and got it weighed, on which a separate note is prepared on 1-10-1999. The said note is reproduced hereunder:

"According to the prosecution four vials all weighing about 5.90 grams inclusive of the weight of the vial and cork and the powder heroin was recovered from the accused. Since the investigating agency had not separately weighed the powder and the vials, we called the muddemal property before us and also called, through the learned A.P.P. P.S.I., D. B. Sarak attached to Anti Narcotic Cell, C. B. C.I.D. Mumbai along with a measuring scale which had the capacity to measure from fraction of a gram upto 10 grams.

In presence of the advocate for the appellant accused, A.P.P. and P.S.I. the powder from two vials was removed and kept separately and thereafter weighed the two vials along with their plastic cork. It was found that the weight was 2.5 grams. The powder from the other vials was not taken out because the moisture had made it impossible to extract the same from the vials. All the vials are alike and since the weight of 2 vials was 2.5 grams the approximate weight of all the four vials without powder was agreed by all to be 5 grams."

It will therefore be clear from the aforesaid note that the defence of the accused in this regard cannot be accepted because admittedly the appellant - accused had more than 250 milligrams of heroin with him at the relevant time.

5. So far as the F.I.R. is concerned, the same was produced and proved by P.W. 2 Popat Devane at Exhibit 30. This F.I.R. is on a plain paper and not in a prescribed form. There is no acknowledgment of any Officer of Pimpri Police Station nor any timing nor anything to show that this was treated as F.I.R. and any offence was registered. There is no endorsement from the Senior Officer on this Exhibit 30 to be treated as F.I.R. No explanation is given by the witness P.W. 2 as to why he did not obtain any signatures thereon in token of having received the complaint as F.I.R, why time and C.R. No. are not mentioned. Consequently, the trial court erred in relying upon Exhibit 30 as F.I.R.

6. So far as non compliance of Section 57 is concerned, the N.D.P.S. Act required that within 48 hours the Officer concerned has to give intimation in writing to his seniors about the raid conducted by him, the effect of the raid, the property seized and registering of the offence. However, there is no compliance of section 57 of N.D.P.S. Act at all and therefore relying on the Judgment of the Supreme Court reported in JT 1999 (3) SC 231 Thandi Ram Vs. State of Haryana, we have no alternative but to acquit the accused. We, therefore, pass the following order :

O R D E R

Appeal is allowed.

Conviction of the appellant accused under section 21 of the N.D.P.S. and his sentence passed by the Special Judge & Additional Sessions Judge, Pune, dated 28-10-1994 in Sessions Case No. 166 of 1990 is set aside and he is acquitted of the offence under section 21 of the N.D.P.S. Act. Appellant accused be released forthwith if not required in any other case.

So far as order relating to muddemal property is concerned, the same is maintained.

Appeal Allowed