VIRENDER KUMAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS appeal is directed against judgment dated 5.12.2003 and order dated 9.12.2003 passed by the Additional Sessions Judge, Fatehabad (hereinafter described as 'the trial Court') whereby the appellant along with his co -accused, Suresh Kumar, has been convicted and sentenced under Section 15(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the Act'), to undergo rigorous imprisonment for ten years and to pay a fine of Rs. one lac and in default of payment of fine, to undergo further rigorous imprisonment for two years.

(2.) THE appellant his co -accused were sent up to face trial by the Station House Officer, Police Station, Ratia for the offence punishable under Section 15 of the Act. The case of the prosecution, in brief, is that on 7.10.2000 when Charan Singh, A.S.I. of Police Station, Ratia along with police party was present in the police station, he received a secret information that both the appellant and his co -accused were indulging in smuggling of poppy husk in a canter (Tata -407) bearing registration No. HR -39 -1678 and used to transport the same to Punjab through Lalwas - Kalotha road and on that day also, they would bring the same and if a nakabandi was laid at Bus stand, Khairpur, they could be apprehended. On receipt of the information, Charan Singh, A.S.I. Tried to associate in the nakabandi a Gazetted Officer posted there, i.e., Tehsildar or Naib Tehslidar on telephone, but none of them was available. Thereafter, he flashed a wireless message and requested Avtar Singh, D.S.P., Tohana to reach at Bus Stand, Khairpur while explaining the facts to him. He reached the Bus Stand, Khairpur and laid a nakabandi. After sometime, the canter in question was seen coming from the side of village Lalwas. During this time, one Mehtab Singh resident of Kalotha also met the police party by chance and he was joined in the raiding party. The canter was signaled to stop and accordingly, its driver stopped the same at a distance of 15 -20 paces from the police party. Both the appellant and his co -accused present in the canter were apprehended. The appellant was driving the canter, whereas his co -accused was sitting by his side in the front cabin. Suspecting that some contraband was in the canter, Charan Singh, A.S.I. Served a notice upon both the appellant and his co -accused to the effect that as he suspects some contraband in the canter and he wanted to search the same and if they so desire, the search can be conducted in the presence of a Gazetted Officer or a Magistrate. The contents of the notice were read over and explained to both of them, who signed the same in token of its acknowledgment in the presence of H.C. Niranjan Singh and Mehtab Singh. In the meanwhile, Avtar Singh, D.S.P. also reached at the spot and he was apprised of the facts by Charan Singh, A.S.I. In their written replies which were signed by them and attested by the aforesaid two persons, i.e. H.C. Niranjan Singh and Mehtab Singh, the appellant and his co -accused desired that their search may be conducted in the presence of a Gazetted Officer. The replies were also attested by the D.S.P. on whose directions, the search of the canter was conducted after removing the tarpaulin. Forty bags containing poppy husk concealed in a special chamber made for that purpose were recovered from the canter They were weighed and each of them was found containing 10 Kgs. of poppy husk. Samples of 100 grams were separated from each of the bags. The samples and the bags were separately sealed with the seals of 'CS' and 'AS'. The seal 'CS', after use, was handed over to H.C. Niranjan Singh, whereas the seal 'AS' was retained by the D.S.P. The sealed samples and the bags were taken into possession along with the canter and its registration certificate & tarpaulin vide separate recovery memos which were attested by the witnesses and Avtar Singh, D.S.P. An intimation was sent to the Police Station through Constable Ram Sarup for registration of a case, on the basis of which formal

(3.) THE samples were sent for chemical analysis and after receipt of the necessary report and completion of investigation, a report under Section 173 of the Cr.P.C. was prepared and submitted to the Illaqa Magistrate, who committed the case to the trial Court.