LILU Vs. STATE OF HARYANA

JUDGEMENT

(1.) We are disposing of two Criminal appeals in this judgment. Criminal Appeal No. 52-DB of 2002 has been filed by Lilu and Kuldip sons of Om Parkash, residents of village Dhingsra, Distt. Fatehabad and Criminal Appeal No. 231-DB of 2002 has been filed by Anirudh son of Het Ram resident of Dhingsra. District Fatehabad and Ramphal son of Kurda Ram resident of village Bhodia Khera, District Fatehabad. All the four appellants have been convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short to be referred as the Act) by Additional Sessions Judge, Fatehabad vide judgment dated 5.12.2001 and have been sentenced to under go RI for fourteen years each and to pay a fine of Rs. One lac and twenty five thousand each under Section 18 of the Act and in default of payment of fine to further undergo RI for a period of two years each.

(2.) It is pertinent to notice that initially nine persons including the four appellants (herein) were booked in the present case. Amar Singh son of Budh Ram resident of village Khuria (Rajasthan), Sahi Ram son of Chatru Ram resident of Gothri (Rajasthan) were declared proclaimed offenders whereas Subhash son of Ramji Lal, Pala Ram son of Prem Kumar and Manoj Kumar son of Mahender Singh were charged alongwith the present four appellants but they were acquitted by the trial court. No appeal has been filed against their acquittal by the State.

(3.) In nut-shell, the case of the prosecution is that on 17.11.98. Inspector Shishpal Singh PW9 alongwith other police officials were going towards village Bhattu Kalan in connection with patrolling and crime checking. Whey they reached near temple of village Dhingsra, he received a secret information that six persons have gone towards Dhani of Lilu son of Om Parkash, (appellant in Criminal Appeal No. 52-DB of 2002) in Jeep bearing registration No. HR-22A-9921. The information further received was that Lilu, Kuldip, Anirudh and Ramphal appellants alongwith Pala Ram (since acquitted) were sitting in that Jeep and the same was being driven by Subhash (since acquitted). These persons had brought the opium from Rajasthan and the same was being taken towards the fields of Lilu. It is then the case of the prosecution that Shishpal Singh Inspector PW9 tried to associate some independent persons but they expressed their inability to do so. A raiding party consisting of Inspector Shishpal Singh PW9 and other police officials then reached the Dhani of Lilu appellant and saw that four persons were going in the cotton field adjoining to the path. They were surrounded by the raiding party. The present four appellants had put a plastic bag on a Khes and they were holding corners of the Khes. Inspector Shishpal Singh PW9 suspected some narcotic substance in the plastic bag and he served notices Ex. PA, PB, PC and PD upon all the four appellants respectively giving them option as to whether they wanted the search to be conducted in the presence of a gazetted officer or a Magistrate. All the four appellants then gave their separate replies to the notices Ex. PA/1, PB/1, PC/1 and PD/1 respectively and opted that the search be conducted in the presence of a gazetted officer. It is then the case of the prosecution that a wireless message was sent to Sultan Singh Deputy Superintendent of Police PW3 who reached the spot alongwith his staff. He also verified the facts and the antecedents of the appellants and then instructed Inspector Shishpal Singh PW9 to carry out search of the plastic bag. Upon search of the plastic bag opium was found. Two samples of 250 grams each were separated and the remainder opium came to 30 kilograms 500 grams. The remaining opium was put into two tins. Both the samples and tins containing remaining opium were sealed with the seals bearing impression GR and SS. The case property including the Khes was taken into possession. After recovery, ruqa Ex. PN was sent to police station Bhattu Kalan and formal FIR Ex. PN/1 was registered on the basis of the said ruqa. It is then the case of the prosecution that a report under Section 57 of the Act was also sent to the Deputy Superintendent of Police, Fatehabad which is Ex. PU. Subhash driver of the Jeep was also arrested in this case as he was found standing at a particular place. The Jeep was also taken into possession. Pala Ram was also arrested in this case by Inspector Shishpal Singh PW9 as the appellants had disclosed his name. On further interrogation all the appellants revealed that the opium was brought by them in a Truck from one Amar Singh of village Khuria (since declared proclaimed offender). Manoj Kumar who was the owner of Jeep No. HR-22A-9921 was also arrested in this case. The prosecution agency also made an attempt to arrest Sahi Ram in this case, because he was the owner of the Truck No. RJ-18-0067 which was used for transportation of opium. Ultimately, he was declared proclaimed offenders. Consequently, challan was filed against the four appellants and Subhash, Pala Ram and Manoj (since acquitted).