NEVEEN KUMAR Vs. STATE

JUDGEMENT

(1.) This appeal is directed against the judgment of conviction and order of sentence both dated 29th October, 1993 passed by the learned Additional Sessions Judge (ASJ) convicting the appellant for oence under Section 18 of Narcotic Drugs & Psychotropic Substances Act (for short the 'Act') and sentencing him to Rl for 10 years and a fine of Rs. one lakh and in default of payment of fine Rl for 2 years.

(2.) Briefly, the facts are that SI Prithvi Singh of Police Station Mukerjee Nagar along with Head Constable Lala Ram and Constable Janeshwar on 3.4.1990 at about 6.30 P.M. when present at Batra Cinema had received secret information that one person would come from Majnu Ka Tilla and go towards Nehru Vihar having opium in sufficient quantity and if he is caught the same could be recovered. The information was reduced in writing. S.I. Prithvi Singh joined two public witneses Vijay Kumar and Ashok Kumar there and organised a raiding party which took position at Ganda Nala near Nehru Bazar. The accused was seen coming along with a brief case and at the pointing of the informer he was apprehended, told about the secret information and also asked that if he liked he could be searched before a Gazetted Officer or a Magistrate. The accused declined to be so searched in writing Ex. Public Witness 7/A. The brief case which he was carrying on checking was found to contain opium wrapped in a yellow towel. That was weighed and found to be 2 Kg. and 60 gms. 10 gms. was taken out as sample. Sample and remaining opium were separately sealed in two parcels and sealed with the seal of PS, Inspector. SHO Pritpal Singh had also reached there who also put his seal of PP and the same was seized vide seizure memo Ex. Public Witness 2/A. CFSL form was also prepared. The accused was arrested vide personal search memo Ex. Public Witness 2/B. Rukka was prepared and FIR got registered. The case property was deposited in the Police Malkhana and later on sent to CFSL and report Ex. PX was received which gave positive test of opium. The accused was put to trial for an offence under Section 18 of the Act.

(3.) Prosecution had examined in all 8 witnesses. Public Witness 1 HC Mahabir Singh as duty officer registered FIR (Ex. Public Witness 1/A) on the basis of rukka. Public Witness-3 H.C. Chand Singh was the Moharrar Malkhana who has proved entry of deposit of case property on 3.4.1990 and having sent the same to CFSL on 10.4.1990 through constable Devinder Singh. Public Witness 4 Constable Devinder Singh has deposed having taken the sample opium to CFSL from Malkhana and deposited thereof in intact condition on the same day. Public Witness 2 Ashok Kumar and Public Witness 5 Vijay Kumar are the two public witnesses who deposed about the apprehension of accused, his search and recovery of opium in their presence. However, they have not identified the accused as the person from whom recovery was made though they have not stated that he was not the person from whom the opium was recovered. Public Witness 6 Inspector S. Pritpal Singh, SHO deposed that he had reached at the spot when the opium was recovered. Public Witness 7 HC Lala Ram and Public Witness 8 Prithvi Singh, 1.0. of the case are the witnesses of recovery.