STATE OF RAJASTHAN Vs. DAUL ALIAS DAULAT GIRI

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of the learned Sessions Judge of Rajasthan High Court at Jodhpur directing acquittal of the respondent who faced trial for alleged commission of offence punishable under Sections 8 and 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short NDPS Act) and was convicted by learned Special Judge, NDPS cases, Chittorgarh in Sessions Case No. 252/97 (48/95). The trial Court convicted him to undergo sentence for ten years rigorous imprisonment and to pay fine of Rs. 1,00,000/- with default stipulation.

(2.) Prosecution version as held during trial was that the respondent was found to be in possession of merely 6 Kg. of opium. PW. 1 Jaswant Singh, SHO, Police Station Kanera, District Chittorgarh prepared a Parchakayami (Ex.P/7) on 15.6.1995 at about 7.15 p.m. stating inter-alia that on 15.6.1995 at about 2.00 p.m., he received a secret information from mukhbir to the effect that on that day before 6.00 p.m., one person, namely, Daul Giri (present accused respondent) s/o Madhugiri, resident of Shamkhdo Ka Kheda having opium in his possession would pass through Palchha Ghata on foot from the village Badawali. That information was reduced into writing by Jaswant Singh (PW. 1) and the same is Ex.P/2 and apart from this, that information was also produced in Rojnamcha Ex.P/1 A. The copy of the secret information was also sent by Jaswant Singh (PW.1) to superior officer Dy. PP Khetdan (PW. 13) and Khetdan (PW. 13) was also requested to come and join the raiding party. Thereafter, Jaswant Singh (PW. 1) along with Khetdan (PW. 13, Manikant (PW. 12, Reader of Dy. SP and other police officials and one independent motbir Parbat Singh (PW. 6) proceeded towards the spot in a Government vehicle at about 4.00 p.m. and at about 4.15 p.m., they reached Badawali-Pallchha Road and made Nakabandi and during Nakabandi, at about 5.00 p.m., they saw one person having gunny bag on his head coming on foot from Badawali and he was encircled and on being asked, he told his name as Daul Giri (present accused respondent). Thereafter, the accused was informed about the secret information that he had contraband opium and, therefore, he was to be searched. Before making search, the accused appellant was given a notice Ex.P/3 under the provisions of Section 50 of the NDPS Act asking him whether he wanted to be searched before the Magistrate or Gazetted Officer and upon this, the accused gave his consent that he could be searched by Jaswant Singh (PW. 1). Thereafter, he was searched in presence of two motbirs, namely, Khetdan (PW. 13) and Parbat Singh (PW. 6) and during search, from the gunny bag, plastic bag containing black-brown substance was recovered and on being tested, it was assessed that it was nothing but contraband opium and on being asked, the accused told that he had no valid licence to keep that opium. On being weighed, its weight was found to be 6 k.g., out of which, two samples of 30 grams each were taken for the purposes of chemical analysis and sealed separately on the spot and marked as A/1 and A/2 and the remaining opium was also sealed separately on the spot and marked as A. The fard of search and seizure was prepared on the spot by Jaswant Singh (PW. 1) and the same is Ex.P/4. The fard of specimen impression of seal is Ex.P/5. The accused was arrested through arrest memo Ex.P/6. Thereafter regular FIR Ex.P/8 was chalked out. Jaswant Singh (PW. 1) handed over the seized articles and samples to Malkhana Incharge Bhanwarlal (PW.8, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex.P/15A. Thereafter, one sample was handed over by Bhanwarlala (PW.8) to Surendra Singh (PW.5) for the purpose of depositing it in the FSL, Jaipur and Surendra Singh (PW.5) first took the sample to SP office, Chittorgarh and after obtaining a forwarding letter Ex.P/12 dated 20/6/1995 from SP office, Chittorgarh, he deposited that sample in FSL, Jaipur and obtained receipt Ex. P/13 dated 21/6/1995. The FSL report is Ex. P/16 in which it was reported that the sample contained in the packet marked A/1 gave positive tests for the chief constituents of the coagulated juice of opium poppy having 3.6 % (Three point six percent) morphine.

(3.) After investigation, charge-sheet was filed and as the accused pleaded to be innocent and trial was held in Suppl ort of the prosecution version 14 witnesses were examined. The trial Court held that the accusation was established and, as indicated above, convicted him.