ASHOK KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The above mentioned two appeals are being decided by this common judgment as both of them have been preferred against the common judgment and order dated 26-10-1999 passed by the learned Special Judge, NDPS Cases, Chittorgarh in Sessions Case No. 295/97, by which he acquitted accused Rameshwarlal of the charge for the offence under Section 8/29 of the Narcotic Drugs and Psychotrophic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act'), but simultaneously convicted accused appellants Ashok Kumar and Jaspal in Appeal No. 708/99 and accused appellant Hussain Mohd. in Appeal No. 698/99 for the offence under Sections 8/18 of the NDPS Act and sentenced each of them to undergo ten years' Rigorous Imprisonment and to pay fine of Rs. one lac, in default of payment of fine, to further undergo one year RI.

(2.) The facts giving rise to these appeals are as follows :- PW14 Kaji Nasim Ahmad, Inspector (Preventive Cell), Central Narcotics Bureau, Chittorgarh filed a complaint against the present accused appellants and accused Rameshwarlal in the Court of Special Judge, NDPS Cases, Chittorgarh stating inter alia that on 26-3-1997 under the chairmanship of PW11 Vijay Singh Meena, Superintendent in the office of Dy.Narcotics Commissioner, Kota, a Raiding Party was constituted for the purpose of preventing smuggling of contraband opium etc. and other members of that Raiding Party were PW12 Narain Singh and PW13 Parmanand and when this Raiding Party was making checking at Medi Ka Kheda (Bhawanipura) Railway Crossing on Bhilwara Road, a Bus of Rajasthan Roadways bearing No. RJ/14P 4338 came there, which was going to Jaipur from Badi Sadri and it was stopped by PW12 Narain Singh and the driver of the Bus Najir Mohd., PW3 and conductor of the Bus Neeraj Gautam, PW4 were told that passengers of the Bus were to be checked in connection with contraband opium and both of them were made independent witnesses by PW12 Narain Singh and, thereafter, PW12 Narain Singh entered the Bus along with these two witnesses, namely, PW3 Najir Mohd. and PW4 Neeraj Gautam and found passengers, who were sitting on seats No. 1, 2 and 3 in suspicious condition and on being asked, they told their names as Ashok Kumar (accused appellant No. 1 in appeal No. 708/99) Hussain Mohd. (accused appellant in appeal No. 698/99) and Jaspal (accused appellant No. 2 in appeal No. 708/99) and these three accused appellants were resident of District Sri Ganganagar and they told that they were going to Bhilwara and these three accused appellants along with their luggage were asked to come down from the Bus and they were produced before PW11 Vijay Singh and, thereafter, PW12 Narain Singh gave notice Ex. P/7 under Section 50 of the NDPS Act to accused appellants informing them whether they wanted to be searched before Magistrate or Gazetted Officer or before Superintendent, who was with the Raiding Party, namely, PW11 Vijay Singh, who was Gazetted Officer or before himself i.e. PW 12 Narain Singh. All three accused appellants gave their consent that they could be searched by PW 12 Narain Singh. Thereafter, PW12 Narain Singh asked accused appellant Hussain Mohd. to open the attache of blue colour, which was being carried by him in the Bus and on opening the said attache by him, a plastic bag was found, which was lying beneath the khakhi pent and brown colour shirt and in that bag, light brown colour substance was found and on seeing it, it was assessed that it was nothing, but contraband opium and accused appellant Hussain Mohd. also admitted that it was opium and he further admitted that this contraband opium jointly belonged to them. Thereafter, the said opium along with plastic bag was weighed by PW13 Parmanand and its weight was found to be 1.525 kgs. and after excluding the weight of plastic bag, the net weight of the opium was found to be 1.500 kgs., out of which, two samples of 25 grms. each were taken and sealed separately on the spot and marked as A/1 and A/2 and rest opium was also sealed on the spot. The fard of search and seizure was prepared on the spot by PW12 Narain Singh and the same is Ex. P/8. The specimen seals were taken separately on Ex.P/10. The attache was seized through Ex.P/11. Thereafter, bag of the accused appellant Ashok Kumar was searched and in that bag, three pants and three shirts were found and accused appellant Ashok Kumar told that those pants and shirts belonged to all of them. The fard of seizure of bag was prepared by PW12 Narain Singh on the spot and the same is Ex. P/13. Thereafter, on search of accused appellant Jaspal, three tickets were recovered and the same were seized through Ex. P/9. Thereafter, all the three accused appellants were arrested through arrest memos Ex. P/14, Ex. P/15 and Ex. P/16. PW12 Narain Singh sent a detailed report of all the proceedings which he conducted to PW10 Rakesh Kumar, Superintendent, Central Narcotics Bureau, through Ex. P/23, on which regular FIR was registered and PW14 Kaji Nasim Ahmad was appointed as Investigation Officer of the case. During investigation, on 26-3-1997, accused appellant Ashok Kumar gave information to PW14 Kaji Nasim Ahmad under Section 27 of the Indian Evidence Act to the effect that the said opium was purchased from accused Rameshwarlal from his village Gangaji Ka Kheda and he could identify that house and that information was reduced into writing by PW14 Kasi Nasim Ahmad in Ex.P/30. Thereafter, Raiding Party under the chairmanship of PW14 Kaji Nasim Ahmad went to the village of accused Rameshwarlal, where two motbirs, namely, PW1 Ruplal and PW2 Maadhu were taken for the purpose of identifying the house of accused Rameshwarlal and the fard is Ex. P/1 and, thereafter, the house of accused Rameshwarlal was searched and he handed over Rs. 8000.00 for which he sold the opium to accused appellant Hussain Mohd. and the fard of search of house of accused Rameshwarlal is Ex. P/2. The motor cycle was also seized through Ex. P/3 and the accused Rameshwarlal was arrested through Ex. P/4. Thereafter, PW11 Vijay Singh sent fax message Ex. P/26 with regard to recovery of opium from the accused appellants, to Dy. Narcotics Commissioner, Central Narcotics Bureau, Kota. PW12 Narain Singh, after conducting whole proceedings of search and seizure, deposited the recovered articles in the Malkhana and the copy of Malkhana Register is Ex. P/24 and, thereafter, vide letter Ex. P/22, one sample was sent to Government Opium and Alkaloid Works, Neemuch for chemical analysis through PW9 Premnath, who deposited the same in the Government Opium and Alkaloid Works, Neemuch and the receipt is Ex. P/21 and the report of the Govt. Opium and Alkaloid Works, Neemuch is Ex. P/30, where it has been stated that the sample was found by qualitative and quantitative analysis to be opium. During investigation, statements of accused appellants Hussain Mohd., Ashok Kumar and Jaspal under Section 67 of the NDPS Act were recorded and they are marked as Ex. P/27, Ex.P/28 and Ex. P/29 respectively. After usual investigation, a complaint was filed against the present accused appellants and accused Rameshwarlal in the Court of Special Judge, NDPS Cases, Chittorgarh. On 12-7-1997, the learned Special Judge, NDPS Cases, Chittorgarh framed charges for the offence under Section 8/18 of the NDPS Act against the present accused appellants and for the offence under Section 8/29 of the NDPS Act against accused Rameshwarlal. The charges were read over and explained to the accused, who pleaded not guilty and claimed trial. During the course of trial, the prosecution, in support of its case, examined as many as 14 witnesses and got exhibited several documents. Thereafter, statements of the accused under Section 313 Cr.P.C. were recorded and two witnesses were produced in defence by the accused. After conclusion of the trial, the learned Special Judge, NDPS Cases, Chittorgarh through his judgment and order dated 26-10-1999 acquitted the accused Rameshwarlal of the charge for the offence under Section 8/29 of the NDPS Act, but convicted the present accused appellants for the offence under Section 8/18 of the NDPS Act and sentenced in the manner as indicated above holding inter alia :-

(3.) In these appeals, the following submissions have been made by the learned counsel for the accused appellants :-