SHANKER LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal has been filed by the accused appellant against the judgment and order dated 2. 9. 2000 passed by the learned Special Judge, NDPS Cases, Jodhpur is Sessions Case No. 50/98, by which he convicted the accused appellant for the offence under Sec. 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 to pay a fine of Rs. 1 lac, in default of payment of fine, to further undergo 2 1/2 years' R. I.

(2.) IT arises in the following circumstances:- On 30. 7. 1998 at about 5. 00 PM, PW 5 Naraindan, who was SHO, Police Station Sadar, Pali, after receiving some information, proceeded towards Jodhpur Road and when he was checking, at about 6. 15 PM, at Pali- Jodhpur Road Railway Phatak Gumti, he received a secret information from mukhbir to the effect that one Shankarlal (accused appellant) had kept milk of opium in the dikki of his motor cycle Suzuki bearing No. GJ 9/f. 559 and he was coming from Neemuch and he would supply that milk of opium in the Dhabas of Bhakri situated on Jodhpur Road. PW 5 naraindan reduced that information into writing and the fard is Ex. P/7 and after recording that information, PW 5 Naraindan asked PW 10 Manoharlal to deliver its copies to Dy. SP and CO and proceeded further and at that time, PW 8 Amar Singh and PW 4 Jainaram were with him. , Therefore, at about 6. 40 PM, they saw one motor cycle of the same number as disclosed in the mukhbir information coming from the side of Pali and PW 5 Naraindan and PW 8 Amar Singh, ASI tried to stop that motor cycle and that person made efforts to run away, but he was apprehended and on being asked, he told his name as Shanker Lal (present accused appellant) and he was asked as to what was kept in the dikki of Motor cycle and upon this, the told that it contained milk of opium. Thereafter, the accused appellant was asked whether he wanted to be searched before Magistrate or Gazetted Officer and upon this, he gave his consent that he and his motor cycle could be searched by PW 5 naraindan and the fard of consent prepared in presence of PW 1 Lalit Kumar and PW 2 Karnaram is Ex. P/1. Thereafter, proceedings of search and seizure were stated by PW 5 Naraindan and dikki of the motor cycle was found locked and it was got opened by key and in it, black colour liquid solid substance was found and on being tasted, it was assessed that it was milk of opium. Thereafter, it was weighed and its weight was found to be 5 kgs. , out of which, one sample of 100 grms. was taken and sealed separately on the spot and marked as A and the remaining milk of opium was also sealed separately on the spot and marked as B. The fard of search and seizure prepared on the spot by PW 5 Naraindan is Ex. P/2. The accused appellant was arrested through arrest memo Ex. P/4. Ex. P/3 is the site plan. Ex. P/8 is the FIR, which was lodged by PW 5 Naraindan. The detailed report sent by PW 5 Naraindan to SP, Pali for making compliance of Sec. 57 of the NDPS Act is Ex. P/9. PW 5 Naraindan handed over the seized articles and sample to the Malkhana Incharge PW 4 jainaram, who deposited the same in the malkhana and made entries in the Malkhana Register Ex. P/12. Thereafter, PW 4 Jainaram gave one sample to PW 9 Manakram through letter Ex. P/10 and after taking a fresh forwarding letter Ex. P/20 from SP Office from PW 13 Kishanlal, PW 9 Manakram deposited the sample in the FSL, Jaipur on 5. 8. 1998 and obtained receipt Ex. P/14. The FSL report is Ex. P/21, where it was reported that the sample contained in the packet marked A gave positive tests for the presence of chief constituents of coagulated juice of opium poppy having 6. 18% (Six point one eight percent) morphine. After usual investigation, the police submitted challan for the offence under Sec. 8/18 of the NDPS Act against the accused appellant and for the offence under Sec. 8/29 of the NDPS Act against another accused Bhopal Singh in the Court of Special Judge, NDPS Cases, Jodhpur. Vide order dated 18. 02. 1998, the learned Special Judge, NDPS Cases, Jodhpur ordered that accused appellant be charged for the offence under Sec. 8/18 of the NDPS act and he was charged accordingly and the charge was explained and read over to him. He denied the charge and claimed trial. But, by the same order, the learned Special Judge discharged another accused Bhopal Singh of the charge for the offence under Sec. 8/29 of the NDPS Act. During trial, the prosecution in support of its case examined as many as 13 witnesses and got exhibited several documents. Thereafter, the statement of accused appellant under Sec. 313 Cr. P. C. was recorded. In defence, no evidence was produced by the accused appellant. After conclusion of trial, the learned Special Judge, NDPS Cases, Jodhpur through his judgment and order dated 2. 9. 2000 convicted the accused appellant for the offence under Sec. 8/18 of the NDPS Act and sentenced him in the manner as indicated above holding inter-alia that the prosecution has proved its case beyond all reasonable doubt against the accused appellant for the offence under Sec. 8/18 of the NDPS Act. Aggrieved from the said judgment and order dated 2. 9. 2000 passed by the learned Special Judge, NDPS Cases, Jodhpur, the accused appellant has preferred this appeal.

(3.) SEC. 42 of the NDPS Act has two aspects:- 1. That if the officer has reason to believe from personal knowledge or information given by any person, he shall take down that information in writing; 2. That for making compliance of SEC. 42 (2), such officer, after taking down that information in writing or recording grounds for this belief under the proviso to above SEC. shall forthwith send a copy thereof to his immediate official superior.