BABULAL Vs. STATE

JUDGEMENT

(1.) Appellants convicted for the offence of violation of Section 8 punishable under Section 18 of NDPS Act recorded in Sessions Case No. 65/2000 by judgment dated 28.02.2003 and sentenced to ten years RI with fine Rs. 1 lac and in default one year RI challenges the validity of conviction and sentence awarded. Heard learned counsel for the appellants and the Public Prosecutor.

(2.) Prosecution version as disclosed appears to be that posted SHO at Police Station Pratapgarh on 17.10.09 Sub inspector Tej Singh PW/12 making roznamcha entry No. 895 handing over charge to Sub Inspector Suresh Kumar PW/2 Ex.P/23 at 11:15 PM proceeded for investigating for certain FIR. PW/2 about two hours later i.e. at 1 AM informed by some of two persons Babu lal and Govind Singh (appellants) with illegal opium shall be proceeding on foot towards Fathpur from their village Jamalpura, so PW/2 making entry Ex.P/21 bearing No. 898 in Roznamcha intimated of this information to Dy. Superintendent vide Ex.P/13, by dispatching it with Constable Keshar Singh PW/11. PW/2 with other SI and two constables making entry Ex.P/22 in Roznamcha proceeded to village Jhansdi where on asking accompanying Constable PW/3 called independent witnesses PW/1 & 9 who when given notices Ex.P/1 and P/16 of received information and asked to be motbir expressed consent and recorded on Ex.P/2 and 16. Allegedly at about 3:30 in night, two persons were seen coming on foot from vilage Jamalpura who encircled and asking them were obtained their names and other particulars etc then were told of information received and further asked if they desirous of search before and by gazetted or higher officer or by incharge present and they expressed desire and consented for search by them. So search was made. Babu lal who had a white bag in his hands containing polythene bag in which was black vicious substance which smelt and tasted of opium and as Babu lal did not have a license so substance seized and on weighing found to be 3.5 kg from which taken and separately sealed were two samples of 50 gm each. Then search was made of other person Govind Singh who also was having a green bag in his right hand in which also was while polythene containing black vicious substance appearing opium that also was seized and weighed 3.0 kg from which also two samples were collected and separately sealed. Memo of these proceedings prepared is Ex.P/4 and packet sealed as above respectively marked A to F and seal impression also fixed preparing separate impressions.

(3.) Appellants informed of their arrest vide memos Ex.P/17 & 18 and arrested preparing memos Ex.P/7 & 8, preparing memo of proceedings P/14 FIR bearing No. 408/01 P/15 came to be registered. Superintendent of Police was informed of all above happening vide letter P/20 ad malkhana articles deposited with Malkhana incharge PW/6, making memo Ex.P/19, and PW/6 making entries P/25 in register keeping packets safe handed over two sample packets marked A & D to Constable PW/7 who obtaining forwarding letter P/26 and with seal impression of above packets deposited at laboratory obtaining receipt P/27. Inspecting place of occurrence I/O PW/10 before PW/4 and PW/5 prepared site memo and plan Ex.P/18 completing needful including recording statements, chargesheet submitted. FSL Report Ex.P/29 describe of substance found in received intact sealed packets to be opium having respectively 6.75 and 8.17 per cent morphine.