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TMI Blog2012 (7) TMI 1115X X X X Extracts X X X X X X X X Extracts X X X X ..... ntity by way of samples from each of the packets of pieces recovered should be sent for chemical examination. Otherwise, result thereon, may be doubted. For example, if the 08 packets were allegedly recovered from the appellant and only two packets were having contraband substance and rest 6 packets did not have any contraband; though all may be of the same colour, when we mix the substances of all 8 packets into one or two; then definitely, the result would be of the total quantity and not of the two pieces. The process adopted by the prosecution creates suspicion. In such a situation, as per settled law, the benefit thereof should go in favour of the accused. It does not matter the quantity. Proper procedure has to be followed, without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving black colour substance. 5. Accordingly, two samples of 25 Grams each were made after braking charas from each of the 08 slabs. The samples were sent to FSL and it found to be charas. 6. Mr.Aditya Wadhwa, learned counsel for appellant has argued that the sample sent to the FSL is not the representative of the entire quantity of the allegedly recovered substance. Therefore, it cannot be inferred that the quantity of 3.5KGs of recovered substance was charas. 7. He submitted, the admitted case of the prosecution is that the appellant was found carrying a green coloured polythene bag which in turn contains 08 smaller packets. It was in these smaller packets that the black coloured substance which stated to have been the charas. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to be concluded that what the accused was found with, was only 50 grams of charas/hasis and not the entire quantity of 380 grams as contended by the prosecution and that is the inference which has got to be drawn, as drawn by the Apex Court, upon the failure of the prosecution to send all the cigars or flats found with the accused. 11. Learned counsel has argued that in the factual matrix of the case, since the representative sample from each of the 8 packets has not been sent for chemical examination, it cannot be inferred that the entire seized substance 3.5 KGs was a charas and the appellant could not be convicted for possession thereof. 12. He further submitted that the report of Forensic Science Laboratory cannot be relied up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e particularly when it does not contain even a grain of material indicating on what scientific tests his opinion was arrived at. Before the evidence of Public Analyst can be safely accepted and relied upon to base the order of conviction and sentence, the Court must have an opportunity of its own to independently assess and appreciate the same on the basis of scientific tests, etc. Instead, if the Court is to surrender to any bare opinion of the Public Analyst, that can amount to abdication of its judicial function, relegating itself to mechanically record the order of conviction and sentence without doing anything else! 15. He has further argued that there is discrepancy in the time of parcels were deposited in the malkhana. PW1, IO of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther seal after use was handed over to him and as to when he had returned the same. This was all more important to rule out the possibility that the sample parcel was not tampered with by anybody till it reached the hands of the Chemical Examiner. Non- examination of Arjan Singh is another factor which strikes at the root of the prosecution case. 20. Learned counsel has further submitted that no public witness has been examined. Therefore, it creates suspicion on the story of the prosecution. In such eventuality, the benefit of doubt should go to the appellant/accused. 21. Moreover, learned Trial Judge has wrongly convicted the appellant without going through the evidence in favour of appellant and has not even applied its mind to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mark A to C and FSL form. Seal after use was handed over to HC Bhagwt Dayal. 23. Learned APP further submitted that PW5 Ct.Umesh Kumar has deposed that the IO conducted the formal search of the appellant and got recovered the polythene packet from his right hand, which was containing 8 polythene packets which were containing slabs of black coloured substance. SI Prem Chand checked and it found to be charas. He supported the version of the PW1/IO. Therefore, the appellant has been rightly convicted for the offences under Sections 20 21 NDPS Act. 24. It is submitted that Section 2(iii) defines 'Cannabis' and Section 2(iv) defines 'Cannabis plant'. The appellant did not put any suggestion during trial as he has argued b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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