MUSHTAQ SHAH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE abovenamed accused appellant has preferred this appeal against the judgment and order dated 23. 12. 1995 passed by the learned Sessions Judge, Pratapgarh Camp Chittorgarh in Sessions Case No. 107/1994 by which he convicted the accused appellant under section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the NDPS Act') and sentenced him to undergo ten years' Rigorous Imprisonment and fine of Rs. 1 lac, in default of payment of fine, to further undergo two years' R. I.

(2.) THE facts giving rise to this appeal, in short, are as follows:- On 5. 5. 1994 at about 7. 30 AM, PW4 Bhagwat Singh, SHO Police Station Nikum, Distt. Chittorgarh received a secret information that Khalasi of Meenaxi Bus, which goes from Sangaria to Arnoda, would carry contraband opium in a gunny bag. That information was reduced in writing by PW 4 Bhagwat Singh in Ex. P/8. THEreafter, PW4 Bhagwat Singh alongwith PW 5 Balwant Singh, PW6 Prahlad Singh and other police officials proceeded in a Jeep and reached Village Kalander Khera. At about 8. 45 AM, Meenaxi Bus bearing No. RJ 27p 0020 came and it was stopped and two independent witnesses, namely PW1 Hasan Khan and PW 8 Bhanwaroo were taken and one person was found sitting on the seat of Khalasi and on being enquired, he told his name as Mushtaq Shah S/o Gafoor Shah, resident of Ranikheda presently Arnoda, Police Station Nimbahera (accused appellant ). A gunny bag beneath the seat of accused appellant was found and on being asked about the said gunny beg, accused appellant told that it belonged to him. THEreafter, accused appellant was asked to come down from the Bus and gunny bag was also taken down from the Bus. It is further stated that there-after, PW4 Bhagwat Singh gave a notice Ex. P. 1 u/s. 50 of the NDPS Act to the accused appellant informing him whether he wanted to be searched before a Gazetted Officer or Magistrate. After receiving the said notice, he gave his consent and, thereafter, PW4 Bhagwat Singh, in the presence of motbirans PW1 Hasan Khan and PW8 Bhanwaroo, opened the said gunny bag and on opening, a polythene bag of green colour containing opium was found and on weighing, its weight was found to be 1kg. 900 grams, out of which, two samples of 30 grms. each were taken and marked as A/1 and A/2 and rest of the opium was marked as `a' and they were sealed on the spot. THE fard of search and seizure was prepared by PW4 Bhagwat Singh and the same is Ex. P/2. THE accused appellant was arrested through Ex. P/5. THEreafter, the articles recovered and accused appellant were brought by PW4 Bhagwat Singh to the Police Station and Parcha Kayami Ex. P/9 was prepared by him and on the basis of that Parcha Kayami, FIR No. 52/94 Ex. P/10 u/s. 8/18 of the NDPS Act was chalked out. Specimen seals were also taken separately on Ex. P/3 and articles recovered from the accused appellant alongwith samples were handed over by PW4 Bhagwat Singh to PW10 Yashwant Singh, who deposited and entered the same in the Malkhana and the copy of the Malkhana Register is Ex. P/12 and one sample was given by PW10 Yashwant Singh to PW6 Prahlad Singh for depositing in the FSL. THEn, P. W. 6 Prahlad Singh went to SP Office, Chittorgarh and after obtaining forwarding letter Ex. P/1 from SP office, he deposited the sample in the FSL, Jaipur and the receipt of depositing the sample in the FSL is Ex. P/12. THE FSL report is Ex. P/11, where it has been mentioned that sample contained in the packet marked A/1 gave positive tests for the chief constituents of the coagulated juice of opium poppy having 1. 78% (one point seven eight percent) morphine.

(3.) IN this appeal, the learned counsel for the accused appellant has made the following submissions:- 1. That in the present case, provisions of Section 42 of the NDPS Act would be applicable and since compliance of the provisions of Section 42 (2) of the NDPS Act has not been made, inasmuch as, grounds of belief recorded under section 42 (1) had not been sent to immediate official superior, therefore, the whole trial stands vitiated and the accused appellant should be acquitted on this ground alone. 2. That compliance of the provisions of Section 50 of the NDPS Act has also not been made. 3. That there is no evidence to show that specimen seal has been sent alongwith the sample to FSL and furthermore, sample of 30 grm. was taken on the spot while report of FSL Ex. P/11 mentions that weight of sample which was received in the FSL was 52 grms, and thus, recovery in the present case is doubtful. Hence, it has been argued that accused appellant be acquitted of the charge under section 8/18 of the NDPS Act.