JAHID AND ANOTHER Vs. STATE OF HARYANA

JUDGEMENT

(1.) This appeal is directed against judgment dated 27.11.2004 rendered by Sh. K.C. Sharma, Additional Sessions Judge-cum-Special Court under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity 'the NDPS Act'), whereby the appellants were convicted for keeping in their possession 4.9 Kgs. of opium without any permit or licence, thus, committing an offence punishable under Section 20 of the NDPS Act. By passing order on sentence dated 29.11.2004, the appellants were sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of ' one lakh each. In default of payment of fine to further undergo rigorous imprisonment for a period of 2 years and six months.

(2.) In brief, facts of the prosecution case are; that on 21.4.2002 ASI/SHO Sarup Singh, (PW6), received secret information in the police station to the effect that Jahid and Noordin (appellants) were carrying opium from Rajasthan by Jeep No. RJ 02 C-4163 for selling the same in the area of Mewat via Ferozpur Jhirka/Badkali. In case of nakabandi nearby Badkali area, they can be apprehended with opium. On receipt of this information, ASI along with other police officials reached the turn of Jatka Siswana turn, located on Badkali Ferozepur Jhirka Road and conducted nakabandi. After about half an hour, the aforesaid Marshal Jeep came from Alwar side. It was got stopped on the naka. Two persons were found sitting on the front seat of the jeep. On enquiry, driver of the jeep disclosed his name as Noordin son of Gulzar and also furnished his complete address whereas the other gave his name as Jahid son of Abdul Kudus with full address. ASI Sarup Singh told the appellants that he was suspecting some drugs in the car, as such, they have got a right to get their personal search as well the search of the jeep conducted in the presence of a Magistrate or some gazetted officer. He served notices which are Ex.PH and Ex.PG respectively. Both the appellants exercised their option in favour of DSP. Their replies are Ex.PH/1 and Ex.PG/1 respectively. Thereafter, through wireless message, DSP Devender Yadav was called at the spot. On reaching the spot, personal search of the appellants as well of the Marshal Jeep was taken in the presnce of DSP. From Marshal Jeep, one bag make Reebok, blue/black colour was recovered from the left side of the driver seat. Opium wrapped in polythene was recovered from that bag. From C.Umar Mohammad weighing machine, weights, 2 small containers of plastic and one canny of 5 liters was got managed. Recovered opium was weighed as 24.900 Kgs. Out of this, 2 samples of 100 grams each, were taken separately and were put into separate containers and sealed with the seal of 'SS'. Residue opium was also put into 5 liters canny and then sealed with the seal of 'SS'. Seal after use was handed over to ASI Mohan Singh. All the aforesaid 3 sealed containers, Reebok Bag were taken into police possession vide memo Ex.PC. Marshal Jeep was taken into police possession vide memo Ex.PD. Ruka Ex.PE was sent to the police station for registration of the case whereupon, ASI Bir Singh made his endorsement Ex.PE/2 and recorded the formal FIR as Ex.PE/1. Special report was also sent to the senior police officers. Rough site plan of the spot Ex.PJ was prepared. Statements of witnesses were recorded. The appellants were arrested. The case property was deposited with the MHC Deep Singh in intact condition. After obtaining the report from FSL as Ex.PF, whereby the contents of sample sent for examination, were reported as that of opium; and after completion of necessary investigation, the challan was put in Court against the appellants.

(3.) Finding prima-facie case against the appellants for committing offence punishable under Section 20 of the NDPS Act, they were charge sheeted accordingly, to which they pleaded not guilty and claimed trial. After taking prosecution evidence, statements of accused under Section 313 Cr.P.C. recorded. Each and every incriminating allegation was put to the appellants to which they denied and pleaded their innocence. The defence taken by the accused is this; that the jeep in question is owned by Sakir, brother of Jahid. It was used as a taxi. On the day of occurrence, the said jeep was at Taxi Stand of Kishangarh, where it was booked by some person for going to village Bukara Kha in the area of Police Station Nagina. The appellants were not present at the Taxi Stand nor they were present in the jeep. Later on, on account of enmity and because of serious party faction, they have been implicated falsely in this case.