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TMI Blog2000 (2) TMI 860X X X X Extracts X X X X X X X X Extracts X X X X ..... the copy of the report recorded is marked as Ext. P-16. Then PW. 11 proceeded with his policemen to the said house of the appellant and searched there at about 12.30 pm. On disclosing his identity of P.W. 3, mother of the appellant and other inmates present there, he searched the house since they did not desire to search the house in the presence of the Magistrate or any Gazetted Officer. However, before search, he sent one of his men to bring a Magistrate or a Gazetted Officer. But he could not procure either a Magistrate or a Gazetted Officer. During the course of the search PW. 11 found 15 ampules of Tidigestic injuction, 4 ampules of Promethezine Hydrochloride injection, 2 disposable syringes with needles and 3 disposable needles on the western end of the beam located on the said room occupied by the appellant. The search list is marked as Ext. P-1. The sample signature and white covering paper are marked as Exts. P-2 and P-3. The appellant was, after arrest, taken to police station, where Ext. P-18 first information statement was recorded. Material objects recovered by P.W. 11 were received in the Court as per Ext. P. 11 property list. As per Ext. P-11 property list, items 1 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellant or that he had kept the contrabands for sale, etc. In support of this argument, he would place reliance on the ratio of judgment of the Rajasthan High Court reported in Ummed v. State of Rajasthan 1996 (1) Crimes 358. In that case the principle laid down is that when the recovery is from a place which was in the possession of an accused and his brother against whom also a search warrant was issued and when no action was taken against the brother, the investigation suffers from basic infirmity and the conviction cannot be sustained. In the instant case, the prosecution has examined PW. 1, a neighbour of the appellant to establish the recovery. This witness was declared hostile and nothing was elicited from him that the room from where the material object was recovered was in the exclusive possession of the appellant. PW. 2 is residing with her husband in the same building on a rental arrangement. She had also not stated that the room is question, was in the exclusive possession of the appellant. This witness was also declared hostile. PWs. 3 and 4 mother and father of the appellant, are also not supporting the prosecution theory. PW. 5 is another brother of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well as Pratap Singh himself that he himself had gone for the search, had effected the recovery, had seized opium and had investigated the whole case throughout. This course of action militates against the basic tenets of jurisprudence and fair investigation. In the facts of the case, I find the status of Investigating Officer, Pratap Singh could not be placed on any pedestal higher than of a complainant and the complainant himself cannot be the sole agency of investigation. In my humble opinion, the prosecution in this case suffers from the basic infirmity as aforesaid and it is a question which goes to the very root of the matter and in the facts of the case it must be held to be sufficient to vitiate the whole investigation. Once, I find that the whole bedrock of the investigation on the basis of which the appellant has been prosecuted is found to be unfair and against the basic tenets of criminal jurisprudence, the conviction and sentence based on such a highly infirm investigation as aforesaid cannot be sustained in the eye of law and accordingly the whole proceedings based on such investigation as aforesaid deserve to be quashed and set aside. Which I hereby do This Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de Injection I.P. having the following printed label and labelled 1 to 4 in the laboratory 2 ml Promethezine Hydrochloride Injection I.P. Each ml. Contains Promethezine Hydrochloride I.P. 25 mgs. Mfg. Lie. No. KD. 168A Lot 3V 969 Mfg. Date 12/94 Expiry Date 11/97 (all the four ampules have the same lot number) 4. Three strips containing fifteen 2 ml. ampules of Tidigesic Injection labeled 1 to 15 in the laboratory and having the following printed label. 1 ml. Buprenorphine Injection Tidigesic Buprenorphine 3 mg/ml (as Buprenorphine Hydrochloride Mfg. Lie. No. 907/A/AP Tamil Nadu Dadha Pharmaceuticals Ltd. Ameer Pet, Hyderabad - 500 016. Batch No. E 9510 Mfg: Apr. 95 Exp. Mar. 97 (all the fifteen ampules have the same batch number) 5. Three needles with cover labelled 1, 2 and 3 in the laboratory kept inside a cover having the following printed label (B-D) Precision Glide 26 C 1/2 Needle Lot No. 05A 2005 Mfg. 01/95 Ext. 12/99 (all the three packets have the same lot No. and label)After investigation the Joint Chemical Examiner has issued Ext. P-9 report as pointed out above. 8. According to the learned Counsel the above said quantity attracts the minimum quantity and, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, the Supreme Court has ruled that when the contraband is proved to be less than 5 grams and that was used by the accused in pouch along with the smoking pipe and smoking materials, it could not be said that it attracts Section 20, on the other hand, the conviction can be recorded only under Section 27 of the Act. In a latest judgment of the Supreme Court, on which the learned Counsel placed reliance, delivered in Crl. Appeal No. 780 of 1998 dated 27.10.1999 (stated supra) it is held as follows: The proviso to Sub-rule (2) is very evident that a person is permitted to keep in his possession for his personal medical use the psychotropic substance up to one hundred dosage at a time. We are not disposed to think that 6 ampules would cross the above limit and there is no attempt made either through DW-1 (Doctor) or through Court witnesses No. 1 (D.M.O.) that 100 dosage would be below the 6 ampules recovered from him. It is unfortunate that the aforesaid points have not been put forward before the Trial Court or the High Court. We feel that the conviction and sentence imposed on this appellant were without the sanction of law. Appellant is unlawfully deprived of his personal l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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