RAJ KUMAR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This is an appeal preferred by Raj Kumar and Nihal Khan (hereinafter referred to as 'the appellants') against the judgment of their conviction dated 6.6.2006 passed by learned Judge, Special Court, Faridkot holding them guilty for the offence punishable under section 18 of the Narcotic Drugs and Pyschotropic Substances Act,1985 (for short 'the Act') and the order of sentence of the same of date vide which they have been sentenced to undergo rigorous imprisonment for fifteen years and to pay a fine of Rs.one lakh each, with further rigorous imprisonment for six months in default of payment of fine. The case set up by Police Station, Sadar Kotkapura is as under:-

(2.) On 11.3.2004, Janak Singh, S.I./S.H.O., Police Station, Sadar Kotkapura along with Mukhtiar Singh, A.S.I. and other police officials started from the police station in an official jeep bearing registration No. PB-04J-1638. It was driven by Surjit Singh, constable No.459. They started in connection with nakabandi. When they were near focal point Hari Nau, they came across Bohar Singh son of Arjan Singh, a resident of Bhairon Patti. He was associated with the police party. Janak Singh, S.I./S.H.O. laid a special naka on the drain bridge on the road between Hari Nau and Kasam Bhatti. At about 5.30 P.M., he saw a jeep bearing registration No. RJ-19C-3897 coming from the side of Kasam Bhatti. Janak Singh gave signal to the driver of the jeep to stop. When the jeep was stopped, he noticed two persons sitting on the front seat of the jeep. They were apprehended on suspicion by Janak Singh, S.I./S.H.O. with the help of accompanying police officials. They were questioned about their identity. The person driving the jeep told his name as Nihal Khan son of Kayam, Caste Sindhi Musalman, resident of Dhani Falaudi, Police Station Falaudi, of District Jodhpur. The person sitting beside him told his name as Raj Kumar son of Deda Ram, Caste Jat, resident of Lohawat, Police Station, Lohawat, Tehsil Falaudi, District Jodhpur, Rajasthan. Janak Singh told them about his suspicion of their having in their possession some intoxicating material. He told them that for that reason, they and their jeep were to be searched. He also apprised them of their right to get this search conducted by some gazetted officer or a magistrate. The appellants desired the search to be made by a gazetted officer. Separate memos in this regard were prepared on which the appellants had put their signatures. By way of wireless message, Kashmir Singh Bhinder, D.S.P., Kotkapura was requested to reach the spot. After some time, Kashmir Singh Bhinder reached the spot. He disclosed his name and rank to the appellants. He also told them that he was a gazetted officer of Punjab Government. He further told the appellants that they could get themselves searched from some magistrate or some other gazetted officer. The appellants then expressed their willingness to get themselves searched by Kashmir Singh Bhinder, D.S.P. Separate memos were again prepared in this regard which were signed by the appellants and attested by the witnesses.

(3.) On the instructions and under the supervision of the D.S.P., the jeep was searched. From the tool box under the driver's seat, two packets of opium wrapped in a glazed paper and kept in an of empty plastic urea bag were found. Weights and scale were arranged. From the two packets of the recovered material, two samples each weighing 50 grams were taken out. The remaining opium, on weighment, was found to be 4 kilograms and 900 grams and kilograms and 400 grams in the two packets. The samples and the remainder of the packets were given the shape of separate parcels. Four samples and two packets of the remaining material were sealed by Janak Singh, S.I./S.H.O. with the seal 'JS'. After preparing the specimen seal, the seal after use was handed over to Mukhtiar Singh, A.S.I. The aforesaid sample parcels and the parcels of the remaining material were also sealed by the D.S.P. with his seal 'KS'. He had attested the parcels and the specimen seal. The parcels were taken into possession by way of a recovery memo attested by the witnesses and the D.S.P. Personal search of the appellants revealed some currency notes in their pockets. A sum of Rs.800/- was found in the left pocket of the shirt worn by Nihal Khan, appellant and a sum of Rs.600/- was found in the right pocket of the lower worn by Raj Kumar, appellant. These currency notes were taken into possession by way of separate recovery memos. A ruqa was sent to the police station through Balkaran Singh, constable on which formal F.I.R. for an offence punishable under section 18 of the Act was recorded by Jaswant Singh, M.H.C. Special reports of the case were sent to the Duty of Magistrate and other officers. The appellants were then formally arrested. On return to the police station, the jeep and the money recovered from the person of the appellants were handed over to the M.H.C. and the appellants were put in the lock up. Janak Singh, S.I./S.H.O. retained the case property with him and on the next day, he produced the same before the Illaqa Magistrate with his request, Exhibit PJ. Inventory of the same was prepared by the Illaqa Magistrate. Photographs of the case property were also taken. The case property was then deposited with the M.H.C. A detailed report as required under section 57 of the Act was sent. The samples were sent to Chemical Examiner, Punjab on 15.3.2004 by the M.H.C. through Duni Chand, constable. On 23.6.2005, registration certificate of the jeep and an affidavit were taken into possession by way of recovery memo Exhibit PL. The statements of witnesses were recorded. On receipt of report of the chemical examiner, Exhibit PN to the effect that the samples were of opium, challan against the appellants was prepared by Janak Singh, S.I./S.H.O.