PRAKASH SINGH AND OTHERS Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The above mentioned two appeals are being decided by this common judgment as they have arisen from the judgment and order dated 15.5.1998 passed by the learned Special Judge, NDPS Act Cases, Jodhpur in Sessions Case No. 4/98, by which he convicted accused appellant Prakash Singh of Appeal No. 406/98 and accused appellant Shyam Sunder Rajoriya of Appeal No. 376/98 for the offence under sections 8/20(8) (ii) of the Narcotic Drugs and Psychotrophic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') and sentenced each of them to undergo ten years' Rigorous Imprisonment and to pay a fine of Rs. one lac, in default of payment of fine, to further undergo three years Rule. By the same judgment, the learned Special Judge, NDPS Act Cases, Jodhpur acquitted two accused persons, namely, Gopal and Christine Strobel.

(2.) The facts giving rise to these appeals are as follows : Facts of S.B. Cr. Appeal No. 406/1998 of accused appellant Prakash Singh On 20.11.1997, PW 10 Bhagwan Singh, SHO, Police Station Jaisalmer received a secret information through Mukhbir early in the morning to the effect that a vehicle, namely, Tata Sumo was standing before the Meru Palace Hotel and in that vehicle, narcotic drugs might be transported and after reducing that information into writing and informing the superior officers, PW 10 Bhagwan Singh alongwith the Preventive Party comprising of himself, PW 12 Vikram Singh, Dy. SP and other police officials and two motbirs, namely, PW 1 Mohan Singh and PW 3 Sawai Singh proceeded towards the spot and reached there, where vehicle 'Tata Sumo' bearing No. RJ 01C 3645 was round and on the back seat of that vehicle, one person was sleeping and he was awakened by PW 10 Bhagwan Singh and on being asked, he told his name as Prakash Singh (present accused appellant) and he was asked that his search was to be made and for that he was informed whether he could be searched before the present Gazetted Officer PW 12 Vikram Singh or nearest Magistrate. Upon this, accused appellant gave his consent on Ex. P/1 that PW 12 Vikram Singh could search him. Thereafter, accused appellant was searched by PW 10 Bhagwan Singh in presence of PW 12 Vikram Singh and on search, from his both pockets, five packets each containing black substance were recovered and on being assessed, it was found that these packets contained Charas. Thereafter, these packets were weighed and on weighing, their weight was found to be 70 grms. and on being asked whether he possessed any valid license or permit for keeping the Charas, he told that he did not possess any such license. Thus, he committed offence under sections 8/21, 22 and 23 of the NDPS Act. Out of the said 70 grms. Charas, 40 two samples of 30 grms. each were taken for chemical analysis and they were sealed on the spot and marked as S/1 and S/2 and the remaining 10 grams. Charas was also sealed on the spot and marked as 'A'. The specimen seals were taken separately on Ex. P/17. The fard of search and seizure Ex. P-2 was prepared by PW 10 Bhagwan Singh on the spot. Thereafter, a regular FIR Ex. P/29 was chalked out and articles seized from the accused appellant were deposited by PW 10 Bhagwan Singh in the Malkhana and they were received by PW 11 Khiyaram. Thereafter, samples were sent for chemical examination to FSL through PW 14 Madho Singh and the receipt of depositing them in the FSL is Ex. P/34. The report of the FSL, Jaipur is Ex.P/33 and from perusing the FSL report Ex. P/33, it appears that on chemical examination, the articles seized were found to be of charas. The accused appellant Prakash Singh was arrested by PW 10 Bhagwan Singh through Ex. P/5. The driver of the vehicle 'Tata Sumo' Gopal was also to arrested. Facts of S.B. Cr. Appeal No. 376/1998 pertaining to accused appellant Shyam Sunder The case of the prosecution is that on the same day i.e. on 20.11.1997, the accused appellant Prakash Singh or Appeal No. 406/98 and another accused Gopal informed to PW 10 Bhagwan Singh that they had taken this charas from accused appellant Shyam Sunder of Appeal No. 376/98 and accused Christine Strobel and they were staying in Room No. 10 of Mutual Tourist Bungalow, Jaisaliner and they were also having other contraband charas. Thereafter, PW 10 Bhagwan Singh along with Preventive Party comprising of himself, PW 12 Vikram Singh, Dy.SP and other police officials including PW 9 Shyama and two motbirs PW 2 Ajay Saxena and PW 4 Chandradeep Singh and accused appellant Prakash Singh of Appeal No. 406/98 and accused Gopal reached the Mumal Tourist Bungalow and door was knocked by PW 10 Bhagwan Singh, upon which, present accused appellant Shyam Sunder of Appeal No. 376/98 and one lady Christine Strobel came out and they were told that their search was to be made and for that they were informed by PW 10 Bhagwan Singh that he had with him a Gazetted Officer i.e. PW 12 Vikram Singh and if they wanted, search could be made before PW 12 Vikram Singh or if they wanted a Magistrate could be called. Thereupon, they informed that search could be made in presence of PW 12 Vikram Singh and consent fard was prepared by PW 10 Bhagwan Singh and the same is Ex. P/9. Thereafter, search was made in presence of motbir witnesses PW 2 Ajay Saxena and PW 4 Chandradeep Singh and on the eastern side of the room, there was a bag of accused appellant Shyam Sunder and it was checked and besides that bag, there was a plastic bag and it was opened and on opening, two plastic packets were found and hereafter these two plastic packets were also opened and it was found that hey contained black substance and on being assessed it was found that it vas charas. Thereupon, accused appellant Shyam Sunder and accused Christine Strobel told that these packets were in joint possession of both of them. On being asked whether they possessed any valid licence or permit for keeping the charas, they informed that they did not possess any such valid licence or permit and thus, they committed offence under sections 8/21, 22 and 23 of the NDPS Act. Both the packets were weighed and the weight of one packet was found to be 900 grams and weight of another packet was found to be 820 grams. Thereafter, two samples of 30 grasms. each were taken from each packet and they were sealed on the spot and marked as S/5, S/6, S/7 and S/8 and the remaining Charas of each packet was sealed separately on the spot and marked as 'C' and 'D'. The fard of search and seizure was prepared by PW 10 Bhagwan Singh on the spot and the same is Ex.P/11. The articles seized were deposited in the Malkhana by PW 10 Bhagwan Singh and they were received by PW 11 Khiyaram. Thereafter, samples were sent for chemical analysis to FSL through PW 14 Madho Singh and the receipt of depositing them in the FSL is Ex. P/34. The report of the FSL is Ex. P/33 and from perusing FSL report Ex. P/33, it appears that on chemical examination, the articles seized were found to be of Charas. The accused appellant Shyam Sunder was arrested by PW 10 Bhagwan Singh through Ex. P/14 and another accused Christine Strobel was arrested through Ex. P/15. After usual investigation, police submitted challan against four persons, namely, Prakash Singh, accused appellant of Appeal No. 406/98, Shyarn Sunder, accused appellant of Appeal No. 376/98, Gopal and Christine Strobel. On 28.1.1998, the learned Special Judge, NDPS Act Cases, Jodhpar framed charges against four accused in the following manner : <FRM>JUDGEMENT_78_LAWS(RAJ)11_2000_1.html</FRM> The charges were read over and explained to the charges and claimed trial. In support of its case. the prosecution examined as many as 15 witnesses and got exhibited several documents. Thereafter, statements of the accused under section 313 Cr.PC. were recorded and some documents were got exhibited in defence. But, no evidence was led in defence by accused. After conclusion of the trial, the learned Special Judge, NDPS Act cases, Jodhpur, as already stated above, convicted and sentenced the accused appellants Prakash Singh and Shyam Sunder and acquitted two accused Gopal and Christine Strobel through his judgment and order dated 15.5.1998. Aggrieved from the said judgment and order dated 15.5.1998 passed by the learned Spacial Judge, NDPS Act Cases, the present accused appellants have preferred these appeals. S.B. Cr. Appeal No. 406/98 filed by the accused appellant Prakash Singh.

(3.) In this appeal, the learned counsel for the accused appellant has raised the following two submissions :