ROOP CHAND Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS is criminal appeal and has been directed against the judgment and order dated 13.10.1998 passed by Addl. Sessions Judge, Barnala, who convicted appellant Roop Chand under Section 19 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'the Act') and sentenced him to undergo R.I. for a period of 10 years and to pay a fine of Rs. 1 lac. In default of payment of fine, the appellant was directed to further undergo R.I. for two years.

(2.) THE brief facts of the case are that on 13.9.1995 ASI Kishan Singh, in- charge Police Post Rureke Kalan along with HC Gurcharan Singh and other police officials was holding a nakabandi on the bridge of the drain on a kutcha path going from Dhaula to Khudi Khurd in the area of village Dhaula. In the meantime, Kulwant Singh PW met the policy party. After some time Roop Chand appellant came there from the side of Khudi Khurd and he was having a Jhola in his hand. On seeing the police party present there, he tried to turn back, but was apprehended on the basis of suspicion. ASI Kishan Singh told him that the search of the Jhola was to be conducted and whether he wanted the search in the presence of a Gazetted Officer or a Magistrate. The appellant opted that the search may be conducted in the presence of a Gazetted Officer. A consent memo was prepared in this regard. Thereafter the Investigating Officer through wireless message requested DSP Darshan Singh to reach at the spot. Resultantly, DSP Darshan came at the spot and he disclosed his identity to the appellant. Then in the presence of DSP Darshan Singh search of the Jhola was taken by ASI Kishan Singh and opium was found wrapped in a glazed paper. On weighment it came to 2 Kgs. The Thanedar separated two samples of 10 grams each of opium and sealed them with his own seal bearing inscription 'KS'. The samples were further sealed by DSP Darshan Singh with his seal bearing inscription 'DS'. The remaining opium was also sealed with those very seals. A sample impression was also prepared at the spot and all the articles were taken into possession vide separate recovery memo. The appellant could not produce any permit or licence for the possession of opium. Resultantly, ruqa was sent to the police station for the registration of case, on the basis of which formal FIR was recorded. The appellant and the case property were also produced before the SHO of the Police Station, who, of course, did not re-seal the case property because of the fact that it had already been re-sealed by the DSP. The case property was ordered to be deposited in the Malkhana of the police station. One sample of the opium weighing 10 grams was sent to the office of the Chemical Examiner, who declared the contents of the sample as opium. On completion of investigation of the case, challan was submitted in the court of Area Magistrate, who supplied the copies of the documents to the appellant and vide commitment order dated 4.12.1995 committed the appellant to the Court of Session.

(3.) THE oral evidence which was produced by the prosecution is as follow :-