.(1). IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.702 OF 2003 Mohammad Jamahisya Khan, ] Age 30 years, residing ] at Gopalpur, Bhiwandi, ] District - Thane. ] (At present in custody ] of Kolhapur Central ] Prison.) ] ..APPELLANT. Versus State of Maharashtra. ] ..RESPONDENT. .... Mr.Ayaz Khan, Adv. for the Appellant. Mr.K.V.Saste, APP, for the State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 1st July, 2008. DATED : 1st July, 2008. DATED : 1st July, 2008. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. Through this appeal, the appellant-orig.accused has challenged the judgment and order dated 5.5.2003 passed by the learned Special Judge (NDPS Act), Thane in Special Sessions Case No.42 of 2003. By the said judgment and order, the learned Special Judge convicted the appellant-orig.accused for the offence punishable under Section 20(ii)(c) of the Narcotic Drugs & Psychotropic Substances Act (for the sake of brevity, hereinafter called as NDPS Act) and .(2). sentenced him to suffer RI for 10 years and to pay fine of Rs.1 lakh, in default, RI for one year. 2. The prosecution case briefly stated is as under :- . On 27.9.2002 PW-1 PSI Buva, PW-3 PI Rane, PW-4 PC Temre and other officers attached to Crime Branch, Thane were on patrolling duty at Kalyan. When they reached the S.T. stand they noticed two persons standing near the compound wall in a suspicious condition. Hence, the Officers started walking towards those persons. On seeing them, the persons started running. They were chased. One of them succeeded in running away and other person was caught. The said person was holding a regzine bag on his shoulder and in the said bag 1990 gms of charas came to be found. It is the prosecution case that the said person is the appellant. 3. Charge came to be framed against the appellant for the offence punishable under Sections 8 read with sections 20 & 22 of the NDPS Act. The appellant pleaded not guilty and claimed .(3). to be tried. The defence of the accused person is that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Special Judge convicted and sentenced the appellant-orig.accused, as stated in para-1 above. Hence this appeal. 4. I have heard Mr.Ayaz Khan, the learned Counsel for the Appellant-orig.accused and Mr.Saste, the learned APP for the State. I have also perused the impugned judgment and order as well as the record pertaining to the present case. 5. No contention has been raised regarding non compliance of any mandatory section under the NDPS Act. Though Mr.Khan has raised various grounds, in my view, the present appeal deserves to succeed on the first ground raised by him. The ground putforth by the Counsel for the appellant is that there is no reliable material to show that the sample taken from the contraband found with the accused was the very same sample which was sent to the C.A.. The C.A. report (Exh.26) shows that charas is detected in the exhibit. Mr.Khan has pointed out that the C.A. report shows that the .(4). forwarding letter is numbered as 1770/2002 and by the said forwarding letter article which was sent to the C.A. was greenish brown sticks. My attention is drawn to the forwarding letter (Exh.24), wherein the outward number is mentioned as 1774/2002. My attention is also drawn to the panchnama (Exh.17) under which the contraband came to be seized and samples came to be taken. The said panchnama mentions that what was found was charas of blackish colour. Mr.Khan submitted that looking to the discrepancy in the outward number of the forwarding letter and the forwarding letter mentioned in the report of the C.A.. as well as looking to the discrepancy in the physical appearance of the contraband which was seized and which was sent to the C.A., it cannot be said that the very same sample which was taken from the contraband seized from the accused was sent to the C.A.. 6. Secondly, what is significant to note is that the Investigating Officer stated that the samples, which were to be sent to the office of C.A., were handed over to constable PW-4 Temre on 28.9.2002 and the samples had reached the office .(5). of C.A. on 30.9.2002. Significantly, constable PW-4 Temre who had carried the samples to the office of C.A., has categorically stated that the sealed packets along with forwarding letter were handed over to him on 28.9.2002 itself and he carried the same to the office of C.A. on 30.9.2002. 7. Looking to the evidence on record, I find much merit in the submission that the sample which was sent to the C.A.. was not the sample which was taken from the contraband found with the accused person. Hence I am of the opinion that there is no reliable material to show that the sample which was taken from the accused person was the very same sample which was sent to C.A.. Hence no reliance can be placed on the C.A. report wherein it is stated that the contraband is charas. In such case, the conviction would have to be set-aside. 8. In the result, the appeal is allowed. The judgment and order dated 5th May, 2003 passed by the learned Special Judge (N.D.P.S. Act), Thane in Special Sessions Case No.42 of 2003 is set .(6). aside. The appellant- Mohammad Jamahisya Khan is acquitted of the offences punishable under Sections 20(ii)(c) of the Narcotic Drugs & Psychotropic Substances Act. Appellant is in jail. He be set at liberty forthwith if not required in any other case. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)