CHAINA DALAI Vs. STATE

JUDGEMENT

(1.) Appellant challenges his conviction under Sec. 20(b)(1) of the Narcotics Drugs & Psychotropic Substances Act, 1985 (in short. N.D.P.S. Act) as per the impugned judgment dated 4.6.1992 in S.T. No. 19 of 1990 of the Court of Additional Ss. Judge Jaipur.

(2.) The case as projected by the prosecution is that on 19.2 1990 the Inspector of Excise (PW. No. 1), while on patrolling duty, on suspicion searched the Appellant at Sathipur crossing near the bus -stop at about 4.30 A.M and during such search he found a tin box and a plastic coated bag ("Jan' bag) in possession of the Appellant. On verification of the material inside such containers in presence of independent witnesses and departmental staff he found tie tin box containing 6 kg. 750 gm. of Ganja and the bag containing 2 kg. 500 gm. of Ganja. Thus P.W. No. 1 cooked the Appellant for the offence under Sec. 20(b)(1) of the N.D.P.S. Act and submitted a prosecution report. In course of trial, prosecution relied on the evidence of five witnesses, the seizure -list Ext. 1 besides the paper seals used vide Exts. 2 and 3 and the material objects. i.e., the tin box and the plastic bag so also the locks and keys. P.W. Nos. 2 and 3 were respectively the Excise Constable and A.S.I of Excise who had accompanied P.W. No. 1 and PW. Nos. 4 and 5 are two unofficial witnesses who witnessed the search and the seizure. While the official witnesses supported the prosecution, at the time of mat P.W Nos. 4 am 5 turned hostile therefore prosecution was permitted to put leading questions to such witnesses Accused/Appellant while taking the plea of complete denial however did not adduce any defence evidence. On assessment of evidence on record and the ration some reported decisions (as noted in the impugned judgment), the trial Court found the fact of search and seizure to have been proved by the prosecution. Accordingly, learned Addl. Sessions Judge convicted the Appellant and sentenced him TO undergo rigorous imprisonment for three years and to pay a fine of Rs. 10,000/ -

(3.) Though various contentions have been advanced in the appeal memo but at the time of hearing learned Counsel for the Appellant pressed into service two points so as to seek an order of acquittal. Learned Counsel for the Appellant argued that one page prosecution report submitted by P.W. No. 1 is not acceptable in the absence of registration of F.I.R and recording the statement of the witnesses. He further argued that when admittedly the seized articles claimed to be Ganja having not been sent for chemical analysis, the prosecution has failed to prove a case of seizure of Ganja from the possession of the Appellant so as to attract the penal provision under Sec. 20(b)(1) of the N.D.P.S Act. In that respect he referred to and relied on the cases of Raghu alias Raghunath Barik v/s. State, (1993) 6 OCR 527, Pilli Dilli Dora v/s. State of Orissa, (1994) 7 OCR 674, and Subash Suna v/s. State, (1996) 11 OCR 527.