FAILURE TO PROVE THAT THE SEIZED SAMPLE PRODUCE WAS THE SAME SEIZED FROM APPELLANT MEANS FAILURE TO PRODUCE THE SEIZED SAMPLE ITSELF

Rabia Basaria | Panjab University, Chandigarh | 3rd February 2020

Vijay Panday   Vs.  State of Uttar Pradesh Criminal Appeal No. 1143 of 2019

Matter:-

The appellant was charged u/s 8 and 15 of Narcotic Drugs and Psychotropic Substances Act, 1985 [The NDPS Act] for 15 Years along with fine of Rs 5000 u/s 31 of the NDPS Act.

FACTS:- 

• The appellant was arrested as he stepped out of his house. 
• The appellant is stated to have been carrying a plastic flour packet in his right hand,leading to recovery of 10 kg of opium. 
• There is no independent witness from the locality included in the investigation.
• All the witnesses are police officials only. 

APPELLANT’S CONTENTION:-

It is contended that it’s a false allegation. Appellant is arrested as he stepped out of his house. There’s no explanation for non availability of independent. All the witnesses are police officials only and also there’s non compliance with section 50 of the NDPS Act. Further also prosecution failed to establish the sample produced in court was the same seized from the appellant.

RESPONDENT’S CONTENTION:-

It is contended that appellant has previous history of two convictions under the NDPC Act. Thesection 50 has been complied with. The trail court was satisfied with the sample seized from the appellant. In any 

HELD:-

The court found that seizure was at the door step of the appellant and it is hard to believe that police were unable to find any independent witness. Further prosecutions failure to prove that seized sample was the same seized from the appellant makes the case no different from failure to produce the seized sample itself. The court also stated that the fact of an earlier conviction may be relevant for the purpose of sentence but cannot be a ground for conviction per se.

Therefore the conviction by the Trial Court and upheld by the High Court are set aside and appellant is acquitted.