Shiv Charan vs State

A.N. Gupta and R.P. Nigam, JJ.—This appeal has been preferred against the judgment and order dated 12.4.1994 according to which the Appellant was convicted u/s 8/20/23 of the N.D.P.S. Act by the Special/Additional Sessions Judge, Baharaich who sentenced him to undergo 10 years'' R.I. and a fine of Rs. 1,00,000.

The case against the Appellant was that on 11.10.90 at about 4.00 p.m. when P.W. 1 Inspector Dharamraj Azad, Station Incharge of police station Rupaidiha, Bahraich along with P.W. 2 Constable Vishnu Narain Awasthi and other police personnel were going for investigating a murder case in the police jeep, they came across a person on the road in front of village Jiagaon. After seeing the police personnel, he wanted to run away but the police party was able to apprehended him. He revealed his name as Shiv Charan, Appellant, and on search being made below the shirt in a bag like pouch some intoxicant was found. On being asked, he stated that it was Charas which he was bringing from Nepalganj. The Appellant was made to remove the Sadari from his body and after breaking the stitches, five kilograms of Charas kept in bundle of plastic was recovered from the possession of the Appellant and recovery memo was prepared. An F.I.R. of the case was registered on the same day at 5.30 p.m. by P.W. 1 Inspector Dharmraj Azad. The recovered article was sent to the chemical examiner who reported on 26.8.1993 that it contained Charas.

The prosecution examined three witness in all ; out of whom P.W. 1 Inspector Dharamraj Azad and P.W. 2 constable Vishnu Narain Awasthi are eye-witnesses whereas P.W. 3 Inspector Onkar Singh is a formal witness who investigated the case. The defence of the Appellant was of denial. He did not produce any evidence in his defence.

The Appellant in this case is in jail. He could not engage any Counsel and, therefore, Sri Jayant Singh Tomar was appointed as amicus curiae. We have heard Sri Tomar as well as Additional Government Advocate.

It was first argued on behalf of the Appellant that it is a case of non-compliance of provision of Section 50 of the N.D.P.S. Act. It was argued that the Appellant was not informed at the time of his arrest that he had a right to ask that his search may be taken either in the presence of Magistrate or in the presence of a Gazetted Officer. On the other hand, learned Additional Government Advocate argued that in this connection, provision of Section 50 of the N.D.P.S. Act is not attracted inasmuch as it was a case of sudden and chance recovery and seizure of the narcotic, namely, Charas. In support of his contention, the learned Additional Government Advocate placed his reliance on a decision of Hon'ble the Supreme Court rendered in the case of State of Punjab v. Balbir Singh 1994 SCC 634, in which it has been held that in the case of chance recovery, provision of Section 50 of the N.D.P.S. Act is not attracted. A perusal of the F.I.R. shows that it was a case of chance recovery inasmuch as police party suddenly came across the Appellant on the road and when he was searched, some matter was recovered which was found to be Charas.

A perusal of the record of the case shows that the prosecution had not given link evidence. It is not known where the seized Charas was kept after it was recovered from the possession of the Appellant. It is also not known that who had carried it from the place of recovery to the place of storage. No evidence was also adduced as to who had carried the Charas in question to the Chemical Examiner. The said Charas is said to have been recovered on 11.10.1990 and the report of chemical examiner is dated 26.8.1993 from which it appears that it was received in the office of chemical examiner by means of letter dated 5.11.1991. No evidence is given to show that the Charas in question remained intact in the sealed bag for a period of more than one year, i.e., from 11.10.1990 to 5.11.1991. In view of this, it cannot be said that the same Charas was sent to the chemical examiner for his report which was recovered from the possession of the Appellant. Hon'ble the Supreme Court in the case of Valsala v. State of Kerala 1993 SCC 1082, has held that in the absence of link evidence, the conviction under the N.D.P.S. cannot be sustained.

Considering lack of link evidence, the Appellant is entitled to get the benefit of doubt. In the result, appeal is allowed. Conviction and sentence recorded against the Appellant are set aside. He is acquitted. He shall be set at liberty forthwith unless wanted in some other case.