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Shiv Shankar @ Ashish Shivhare v. State Of U.P. - CRIMINAL APPEAL No. 4891 of 2005  RD-AH 21429 (19 December 2006)
Court No. 41
Criminal Appeal No. 4891 of 2005
Shiv Shankar @ Ashish Shivhare
State of U.P.
Hon'ble M. K. Mittal, J
Appellant Shiv Shankar @ Ashish Shivhare has prayed for release on bail in this appeal filed by him against the judgement and order dated 18.10.2005 whereby he has been found guilty and convicted by Addl. Sessions Judge, F.T.C.-1, Banda in S. T. No. 10 of 2005 under Section 22 of N.D.P.S. Act and has been sentenced to undergo rigorous imprisonment for ten years and fine of Rs. 1,00,000/- has also been imposed on him.
Heard learned counsel for the appellant, learned A.G.A. and perused the Trial Court record.
Accused is alleged to have been found in possession of 600 grams of smack on 22.11.2004 by the police party. This smack was in two packets of 300 grams each and samples of 10 grams each from both the packets were taken and were sealed at the spot. The fard recovery was also prepared and copy was given to the accused. He was lodged at the Police Station on 22.11.2004 and seized property was deposited in police Malkhana. It is further contended that the samples so seized were sent through constable and were delivered in chemical laboratory on 4.12.2004.
Learned counsel for the appellant has vehemently argued that in this case the prosecution failed to give the link evidence to establish that the items as were recovered from the accused and were sealed at the spot were sent for chemical examination. In this case, prosecution did not examine the constable who took the sealed sample packets for chemical examination.
Learned counsel for the appellant has thus contended that compliance of Section 55 of N. D.P.S. Act has not been made.
Learned A.G.A. has contended that the necessary compliance has been made in this case and the sample was sent in sealed condition and it reached the laboratory in sealed condition and that the provisions of Section 55 of N. D. P.S. Act are only directory and are not mandatory. It is correct that the provision of Section 55 of N.D.P.S. Act are directory in nature but it has been held in the case of Gurubax Singh Vs. State of Haryana, U.P. Crl 2001(1) 290 by the Hon'ble Apex Court, while considering the provisions of Sections 52, 55 and 57 of N.D.P.S. Act that they are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, Investigating Officer cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article.
In the case of State of Rajasthan Vs. Gurmail Singh, 2005 Crl. L. J. 1746, the Malkhana register was not produced in evidence to prove that seized articles were kept in Malkhana. No sample of seal was sent along with sample to excise Laboratory for purpose of comparing with seal appearing on sample bottles and no evidence to prove satisfactorily that seals found were in fact same seals as were put on sample bottles immediately after seizure of contraband was adduced. These shortcomings in the prosecution case had resulted in acquittal of the accused by the High Court and the same was held to be proper by the Hon'ble Apex Court.
In the instant case also, no register has been produced to show that recovered items and the samples were deposited in the Police Malkhana on 22.11.2004. No evidence has been given as to when the samples were taken out from Malkhana in sealed condition and were sent to the chemical laboratory. There is also no evidence to show as to how the sealed packets were kept in the Malkhana. The constable who took the sample to chemical laboratory has not been examined. The learned counsel also argued that the accused is in jail for more than two years.
In the circumstances of the case, but without prejudice to the merits of the case, appellant be released on bail, during pendency of this appeal, on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned. He shall also deposit Rs. 15,000/-, within a month from today, as fine out of the total fine amount and the rest amount shall remain stayed during pendency of the appeal. In case, he fails to deposit the same, the bail order shall stand cancelled and he shall be committed to custody.
He shall also give an undertaking that he will not indulge in any criminal or antisocial or drug trafficking activity and if any report is found against him it shall be open for the court below to report to this Court so that his bail may be cancelled.
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