Judgment:
ORDER
O.P. Bishnoi, J.
1. These two appeals have been filed in respect of the judgment dated 7-8-1999 delivered by the Special Judge, N.D.P.S. cases, Pratapgarh, Appeal No. 497/99 has been filed by the convict Gopal and Appeal No. 759/2000 has been filed by the Central Bureau of Narcotics, feeling aggrieved by the acquittal of Badar alias Bahadur.
2. The prosecution story, in brief, is that a bus bearing No. CIF-238 was stopped by the officers of the Narcotics Department near village Mokhampura. The accused-appel-lant-Gopal was travelling on Seat No. 32 and his brother Badar alias Bahadur was sitting near by on Seat No. 33. Gopal was allegedly carrying a bag, which was placed in his lap and upon search two small bags containing opium were found in the Bag. One bag contained opium weighing 2.500 kg. and the other contained 2.200 kg. opium. Samples weighing 24 gms. each were separated and sealed and both the accused persons were arrested. Subsequently, the investigation was handover to P.W. 8 Chandra Prakash Morya who recorded the statement Ex. P/16 of Gopal and Ex. P/17 of Badar. Allegedly they stated that they had conspired to transport the said opium and consequently, complaint was filed against both of them. Gopal was charged under Sections 8/18 and 8/22 of the N.D.P.S. Act. Badar alias Bahadur was charged under Sections 8/18 r.w. Section 29 of the said Act. Both pleaded not guilty. Eight witnesses were examined by the prosecution in support of its story. The accused persons took the defence that although they were travelling in the Bus but they were not carrying any material and the case was foisted upon them. D.W. 1 Gopal and D.W. 2 Ramlal were examined as defence witnesses, who stated that they were also travlling in the said bus, which was stopped by the Narcotics people. According to them the two accused persons and 2-3 more were made to alight from the bus and thereafter the accused persons were taken in the Jeep although nothing was recovered from them. The learned trial Judge thereafter heard the arguments and delivered the judgment, against which the two apepals have been filed. The accused Badar alias Bahadur was acquitted of both the charges. The appelant-Gopal was acquitted of the charge uner Sections 8/22 but was found guilty for the offence under Sections 8/18 of the N.D.P.S. Act and was awarded a sentence of ten years rigorous imprisonment and a fine of Rs. 1,00,000/-. For non-payment of fine, he has been ordered to further undergo rigorous imprisonment for one year.
3. I have heard the learned counsel for the parties and have perused the record of the case. It is contended on behalf of the accused persons that no recovery was effected from them and they have been implicated on account of suspicion. The learned counsel has argued that according to the prosecution story the appellant-Gopal was carrying the bag containing the contraband and till the recovery was made, he continued to keep it in his lap. According to the learned counsel this is highly unusual and unbelievable because a criminal smuggling the contraband normally does not keep the material near him and it is highly improbable that even after the bus was stopped for search by the Narcotics people, who admitedly were dressed officially, the appellant would not try to get rid of the bag and would continue to keep the same in his lap just to facilitate the work of the Narcotics people. The learned counsel has argued that actually the recovery must have been made from the bus but the story that the bag was found in the lap of the appellant is a concoction. It is further argued that there has been no compliance of Sections 50, 55 and 57 of the Act. I have been taken through the evidence in detail and various inconsistencies in the testimony of the witnesses have been highlighted. The learned counsel for the Narcotcs department has supported the trial Court's judgment in respect of Gopal but the acquittal of Badar alias Bahadur has been challenged and according to the learned counsel it was a fit case to find both the accused guilty.
4. After hearing the two sides I am of the view that the appeal filed by Gopal is fit to be allowed and the other appeal filed by the Central Bureau of Narcotics requires to be dismissed. The evidence which has come on record does not inspire confidence. It is difficult to sustain the conviction of the appel-lant-Gopal. Material contradictions have come in the testimony of the witnesses and the whole story is highly suspected.
5. According to the prosecution story P.W. 4 Pramod Kumar Sinha as the leader of the party and under his directions the alleged search was made in which the opium allegedly was recovered. P.W. 4 Pramod Kumar Sinha has stated that the search was made under his direction by Chandra Prakash Morya (P.W. 8) and Bhisham Dev (P.W. 1). However, Bhisham Dev does not say that he was instructed to make the search or he searched any of the accused persons. According to P.W. 1 Bhisham Dev, P.W. 2 Bajrang Lal and P.W. 5 Raghuveer Singh, who are all personnel of the Narcotics Department, the search was made by Chandra Prakash Morya (P.W. 8). Chandra Prakash Morya (P.W. 8) has been examined as P.W. 8 and strangely enough he does not say that he was a member of search party or was present during the search. This inconsistency alone is fatal, so far as the reliability of the prosecution case is concerned. The testimony of P.W. 1 Bhisham Dev in his examination-in-chief is to the effect that the recovery was effected in side the bus but on the next date during his cross-examination he has stated to the effect that the accused persons were brought down from the Bus and thereafter the search was made. Bhisham Dev was asked as to which of the accused was searched first. Initially he stated that first of all Gopal was searched and thereafter Bahadur was searched. Later, he stated that neither Gopal was searched nor Bahadur was searched and it was only the bag which was searched.
6. P.W. 4 Pramod Kumar Sinha has stated that subsequent to the recovery the accused persons were taken out of the bus and all the documents were prepared subequently. P.W. 5 Raghuveer Singh, on the contrary, has stated that each and everything including the preparation of all the documents was done inside the bus and nothing was done outside.
7. According to the Panchnama Ex. P/3 and all other documents the recovery were affected at 12.45 p.m. However, in a very cunning manner no time of preparation of the memos has been recorded on any documents. However, P.W. 4 Pramod Kumar Sinha in his cross-examination has deposed that the notice under Section 50 of the Act was prepared at 12.50 p.m. This falsifies the prosecution case that the search was made subsequent to the notice (Ex. P/2) under S 50 of the N.D.P.S. Act. From the testimony of Pramod Kumar Sinha it comes out that the recovery was effected at 12.45 p.m. and the notice under Section 50 was given subsequent to that at 12.50 p.m. There was thus no compliance of the provisions of Section 50 of the Act. Further there is no evidence to establish that the compliance of Section 55 of the Act was made. When the recovery is effected the personal seal of the official is utilised for sealing the recovered material. When this material is deposited in the 'Malkhana' or in the office, it has to be resealed by another seal, but no witness has stated to the effect that the packets were resealed. Regarding the compliance of Section 57, P.W. 4 Pramod Kumar Sinha has stated that the compliance was made by sending a telegram. Needless to say that the detailed report has to be sent on a paper and sending a wireless message is not a proper compliance.
8. From the evidence which has come on record, it is not established that the sample weighing 24 gms. and sealed on the spot reached the office of the public analyst intact. The report Ex. P/20 issued by the Assistant Chemical Examiner, Government Opium and Alkaloid Works, Neemuch (M.P.) goes to show that the seal was found to be intact and the material after examination was found to be opium. But strangely enough no weight of the material has been recorded in the report. Recording of the weight is a safeguard, available to the accused, in so much, so that if there is much difference in the weight recorded at the time of the recovery and the same when weighed in the office of public analyst, this alone becomes ground of acquittal and the Court had to draw conclusion that the same sample has not reached the office of the public analyst intact as it was sealed at the time of recovery. According to the prosecution story and testimony of Chandra Prakash Morya (P.W. 8) the recovered material was deposted with Chandra Prakash Morya (P.W. 8) and Chandra Prakash Morya (P.W. 8) delivered the sealed packets on 5-8-1995 to P.W. 3 Sarfarajudeen for onward journey to the office of the public analyst situate at Neemuch. However, P.W. 3 Sarfarajudeen does not say that any sample or packet was delivered to him by Chandra Prakash Morya. According to his testimony, one Shiv Morya handed him the packet to be taken to the Govt. factory at Neemuch. This further makes it suspect that the sealed packets remained intact all along the period.
9. In view of the discussion made above I find the Appeal No. 497/99 filed by Gopal fit to be accepted. Neeldess to say that there is no material to accept the Appeal No. 759/2000. Consequently, the Appeal No. 759/2000 is dismissed. The Appeal No. 497/1999 is allowed, the judgment dated 7-8-1999 finding guilty and convicting the appellant-Gopal is set aside and the appellant-Gopal is acquitted of the charge. The amount of fine, if deposited by him, shall be refunded to him.