1 Cri.Appeal 258-97 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.258 OF 1997 Laxminarayan Ramswamy Kundaram ..Appellant Aged : 40 years, Resident of Solapur. V/s. The State of Maharashtra ..Respondent (to be served on the Learned Public Prosecutor, High Court, Appellate Side, Bombay.) Mr.Rahul S. Kate, Advocate, for the Appellant Mrs.P.P.Bhosale, APP, for the Respondent - State CORAM : R.C.CHAVAN, J. DATE : 9TH FEBRUARY, 2011 JUDGMENT . This Appeal is directed against conviction of the appellant by the learned Sessions Judge, Solapur for the offence punishable under Section 22 of the Narcotics Drugs and Psychotropic Substances Act, 1985 and sentence of rigorous imprisonment for ten years with a fine of Rs.1,00,000/- or in default rigorous imprisonment for one year 2 Cri.Appeal 258-97 imposed upon the appellant upon conclusion of Sessions Case No.52 of 1996 before him. 2. Facts which are material for deciding this Appeal are as under :- On 8th July, 1992, a Sub-inspector of State Excise raided the shop of the appellant where the appellant was alleged to be selling an Ayurvedic medicine by name Janardan Kadha. Bottles of the said medicine were seized and sealed in presence of panchas. The sub- inspector lodged the bottles with his superior i.e. inspector of State Excise, who sent one of the bottles to the Forensic Science Laboratory, Pune. The Forensic Science Laboratory reported that the sample contains Diazepam which is at Sr.No.43 in the Schedule to the Narcotics Drugs and Psychotropic Substances Act, 1985. The Sub-inspector of State Excise then filed a charge sheet against the appellant as also the manufacturer of said Kadha one Vijaykumar Narayan Yemul. 3 Cri.Appeal 258-97 3. The learned Sessions Judge chargned both the appellant and said Yemul of the offence punishable under Sections 22 & 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985. Since both of them pleaded not guilty they were put on trial. The prosecution has examined in all four witnesses in its attempt to bring home guilt of the accused. After considering their evidence the learned Sessions Judge acquitted Vijaykumar Narayan Yemul of the offence charged but proceeded to convict and sentence the appellant as mentioned above. Aggrieved thereby the appellant is before this Court. 4. I have heard both the learned Counsel for the appellant and the learned APP for the State. With the help of both the learned Counsel I have gone through the evidence on record. Panchas at the raid, P.W.1 Suresh Mahadeo Mitha and P.W.2 Chiranjiv Raghaviyya Chilkoti turned hostile and refused to support 4 Cri.Appeal 258-97 the prosecution case. P.W.3 Bhagvant Malleshappa Nandi raiding officer, who was Sub-inspector of State Excise stated about his visit to the shop and collection of three sample bottles of Janardan Kadha from the shop. He states that he drew up a panchanama which he proved at Exhibit 12. He states that he had attached four sealed bottles of Janardan Kadha but does not state having sealed them himself. He states that he returned back to his office with the attached bottles and out of the three attached bottles, one sealed bottle was sent to the Forensic Science Laboratory, Pune by his superior i.e. inspector. Thus, there is nothing in the evidence of this witness to show that any seal was affixed. The requisition to the Forensic Science Laboratory was sent by P.W.4 Inspector Nanabhau Ravaji Patangare vide Exhibit 15. He stated that three bottles had been deposited with him by Sub-inspector Nandi out of which he sent one through constable Kamble to the 5 Cri.Appeal 258-97 Forensic Science Laboratory. He admitted in his cross examination that the officers used to send the samples to him and he used to send those samples to the Forensic Science Laboratory, Pune. He stated that on these sample bottles, a common seal of his office used to be affixed. The report of the Forensic Science Laboratory, Pune at Exhibit 8 does not refer to sample having been received in sealed condition. It does not refer to the seals also. P.W.4 Nanabhau Patangare admits in his cross examination that he did not send speciman impression of the seal to the Forensic Science Laboratory, Pune which would have enabled the laboratory to check whether the bottle was in same sealed condition. 5. Considering this lacuna along with the fact that carrier of the sample to Forensic Science Laboratory, Pune was not examined, it would be hazardous to conclude that the sample analyzed by the Laboratory was of the material 6 Cri.Appeal 258-97 which was allegedly seized from the shop of the appellant. The learned Sessions Judge should, therefore, have seen that the report could not be connected to the property allegedly seized from the appellant's shop and should have extended benefit of doubt to the appellant. 6. In view of this, Appeal is allowed. Conviction of the appellant for the offence punishable under Section 22 of the Narcotics Drugs and Psychotropic Substances Act, 1985 and sentence of rigorous imprisonment for ten years with a fine of Rs.1,00,000/- or in default rigorous imprisonment for one year is set aside, and the appellant is acquitted of the said offence. (R.C.CHAVAN, J.)