Mithlesh Kumar Mallah v. State of U.P.

Learned Trial Court after hearing to the parties, appreciating the evidence led by the prosecution held the appellant guilty for committing the offence under Section 8/20 NDPS Act and convicted him as disclosed in para 2 of the judgement. Learned counsel for the appellant submitted that from the recovery memo, it is not clear whether the sample was taken from all the four packets or from a single packet. In the recovery memo, it is only mentioned that from the recovered contraband article, 50 gm charas was taken for sample. If prosecution case is taken to be true on its face value, it is not clear that from which packet sample was taken in that situation benefit of doubt will go in favour of accused. At the most, it may be presumed that from a packet of lesser quantity i.e. half kg which is less than the commercial quantity, sample was taken. Hence, the punishment of 10 years rigorous imprisonment extending 3 of 6 fine of Rs. 1,00,000/- awarded to the appellant is not in consonance of law and is liable to be set aside. Learned A.G.A. opposed the argument of learned counsel for the appellant and submitted that in statement before the trial court, arresting officer has stated that from each packet, sample was taken. Thus, he proved through his evidence that sample was taken from all the four packets which were recovered from the possession of the appellant containing 3 kg charas which is more than commercial quantity, hence taking into account, the aforesaid recovery, punishment of rigorous imprisonment of 10 years extending fine of Rs. 1,00,000/- is wholly justified. Having heard the submission of the parties and considering the aforesaid aspects of the matter, the trial court has rightly convicted the accused-appellant for a period of 10 years extending fine of Rs. 1,00,000/-, therefore, no interference is required by this Court in this appeal. Section (II) of Standing Order No. 1/89 dated 13.06.1989 provides the general procedure for sampling, storage and reads as under : -

2.2. All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchanama drawn on the spot and as per Section 2.4, in the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container. 4 of 6 Thus, from the aforesaid Standing Order, it is clear that from each of the packet of the container, sample in duplicate has to be drawn. As per recovery memo, a sample of 50 gram in duplicate was drawn by the informant. He was expected to draw the sample in duplicate from each of the container/packet but in the instant case, the informant has not adhered to the Standing Order in drawing the sample.

However, in statement before the trial court, he has stated that from all the packets, 50 gram sample was taken which in view of the recovery memo appears to be an improvement, therefore, not considerable. In view of the aforesaid general order and recovery from possession of the appellant and drawing of the sample is proved from evidence of informant P.W. 1 Manoj Kumar Birla and witness P.W. 2 Somnath and sending of the sample is also proved by witness P.W. 3 Suresh Chandra and as per forensic report, the recovered material is charas. Thus, the recovery of charas from the possession of the appellant is proved. However, from the evidence, it is borne out that recovery of 4 packets were made, sample was drawn from a single packet and considering the evidence on record, it will be proper to presume that sample was taken from single packet having lesser quantity i.e. of half kg charas. In that situation, the recovery of the charas is more than smaller quantity and less than commercial quantity for which punishment is provided up to 10 years and fine of Rs.