SURESH CHANDRA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) BOTH appeals are being decided by this judgment as they have been preferred against the common judgment and order dated 12. 5. 2000 passed by the learned Special Judge, NDPS Cases, Chittorgarh in Sessions Cases No. 100/97 by which he convicted both the accused appellants for the offence u/s. 8/18 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' RI and to pay fine of Rs. one lac, in default of payment of fine to further undergo one year RI.

(2.) THEY arise in the following circumstances. :- Facts pertaining to accused appellant Suresh Chandra (S. B. Criminal Appeal No. 266/2000): On 11. 4. 1994 at about 5. 15 AM, PW11 Satish Kumar, SHO, Police Station Sambhupura received a secret information from Mukhbir to the effect that one Suresh Chandra was engaging himself in the business of contraband opium and on that day he would come on foot alongwith the contraband opium from village Bhawaliya. That information was reduced into writing by PW 11 Satish Kumar and the same is Ex. P/18 and its copy was also forwarded by him to superior officers. Thereafter, as per that information, PW 11 Satish Kumar alongwith other police officials including PW 7 Madanlal and PW 4 Bhanwar Singh proceeded towards the spot in a Government Jeep No. RJ 09/c 369 and on the way they took two motbirs, namely, PW 5 Onkarlal and PW 6 Nandlal and reached there and made Nakabandi near the Nala of village Bhawaliya. At about 6. 30 AM, they saw a man coming from the side of village Bhawaliya and that man was apprehended and on being asked, he told his name as Suresh Chandra (present accused appellant ). PW 11 Satish Kumar informed the accused appellant that he had information that accused appellant had contraband opium with him and, therefore, PW 11 Satish Kumar wanted to make search of the accused appellant, and thereafter, PW 11 Satish Kumar gave notice u/sec. 42, 50 of the NDPS Act to the accused appellant. Upon which, accused appellant gave his consent. Thereafter, PW 11 Satish Kumar made search of the accused appellant and on search, a green colour bag of cloth was found in his left hand and on opening it, double white plastic pouch containing liquid substance was recovered and on seeing and tasted, it was assessed that it was nothing, but contraband opium. It was weighed and its weight was found to be 1 kg. 50 grms. , out of which, two samples of 30 grms. each were taken and sealed on the spot and marked as A-1 and A-2 and the remaining opium was also sealed on the spot and marked as `a'. The fard of search and seizure was prepared by PW 11 Satish Kumar on the spot and the same is Ex. P/5 and specimen meals were also taken by PW 11 Satish Kumar on a separate paper and the same is Ex. P/11. The so-called notice alleged to have been given to accused appellant u/sec. 50 of the NDPS Act is Ex. P/9, in which it is stated whether the accused appellant wanted to be searched before the Magistrate or Gazetted Police Officer. The accused appellant was arrested through Ex. P/10. Thereafter, the seized articles were given by PW 11 Satish Kumar to PW 4 Bhanwar Singh, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex. P/4. PW 11 Satish Kumar chalked out the regular FIR and the same is Ex. P/19. After registering the FIR Ex. P/19, PW 11 Satish Kumar gave the investigation of the case to PW 10 Bhanwar Singh, who was SI in that Police Station. Facts pertaining to accused appellant Gopilal (S. B. Criminal Appeal No. 238/2000): During investigation, the accused appellant Suresh Chandra in Appeal No. 266/2000 gave information Ex. P/15 on 12. 4. 1994 at about 7. 30 AM to the effect that he purchased opium from one Gopilal S/o Jeevan Lal. Pursuant to the above information Ex. P/15, PW 10 Bhanwar Singh arrested the accused appellant Gopilal on 12. 4. 1994 at about 12. 30 PM through Ex. D/4. During arrest, the accused appellant Gopilal gave information Ex. P/16 to PW 10 Bhanwar Singh to the effect that he could get recovered remaining opium from his house. On this information, PW 10 Bhanwar Singh proceeded further and in presence of two independent witnesses, PW 1` Neematlal and PW 3 Sohanlal recovered contraband opium on 12. 4. 1994 at 3. 00 PM from the house of the accused appellant Gopilal. It was weighed and its weight was found to be 50 grms. , out of which, one sample of 30 grms, was taken and sealed on the spot and marked as A/1 and the remaining opium was also sealed separately on the spot and marked as A/2. The fard of search and seizure was prepared by PW 10 Bhanwar Singh on the spot and the same is Ex. P/1. The seized articles were handed over by PW10 Bhanwar Singh to Malkhana Incharge PW 2 Bhanwar Singh, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex. P/4. Thereafter, two samples of opium recovered from both the accused appellants were sent to FSL, Jaipur through PW4 Bhanwar Singh and the receipt of depositing them in FSL is Ex. P/8 and the report of the FSL is Ex. P/17. The description of articles and result of examination in the FSL report Ex. P/17 read as under:- "description of Articles "the packet marked A/1 stated to contain the sample seized from Suresh Chand was remarked as A by the laboratory and the packet marked A/1 stated to contain the sample seized from Gopilal was re-marked as B by the laboratory. Each of the packets marked A & B by the laboratory contained semi solid sticky dark-brown coloured substance with characteristic smell of opium packed in small size cylindrical plastic container. The substance contained in the packet marked A & B weighed 50 gm. alongwith the plastic contained & 37 gm. along with the plastic container respectively. " Result of Examination On chemical examination the sample contained in each of the packets marked A & B gave positive tests for the chief constituents of the coagulated juice of opium poppy having 1. 61% (one point six one percent) Morphine and 1. 61% (one point six one percent) Morphine respectively. " After usual investigation, the police submitted challan against both the accused appellants in the Court of Session. On 16. 5. 1994, the learned Sessions Judge framed charges against the accused appellants for the offence u/s. 8/18 of the NDPS Act. The charges were read over and explained to the accused appellants, who pleaded not guilty and claimed trial. During trial, the prosecution in support of its case, examined as many as 11 witnesses and got exhibited some documents. Thereafter, statements of the accused appellants u/sec. 313 Cr. P. C. were recorded. No evidence was produced in defence by the accused appellants. After conclusion of trial, the learned Special Judge, NDPS Cases, Chittorgarh through his judgment and order dated 12. 5. 2000 convicted both the accused appellants for the offence u/s. 8/18 of the NDPS Act and sentenced each of them in the manner as indicated above holding inter-alia that the prosecution has proved its case beyond reasonable doubt against both the accused appellants for the offence u/s. 8/18 of the NDPS Act. Aggrieved from the said judgment and order dated 12. 5. 2000 passed by the learned Special Judge, NDPS Cases, Chittorgarh, both the accused appellants have preferred appeals separately.

(3.) PW 11 Satish Kumar received secret information from Mukhbir that accused appellant Suresh Chandra would pass through the village Bhawaliya alongwith the contraband opium and the same is Ex. P/18. The fard of search and seizure of accused appellant Suresh Chandra alleged to have been prepared by PW 11 Satish Kumar is Ex. P/5 and two motbirs of this fard Ex. P/5 are PW 5 Onkarlal and PW 6 Nandlal. Both the motbir witnesses, namely, PW5 Onkarlal and PW 6 Nandlal have been declared hostile. In the fard of search and seizure Ex. P/5, there is a mention that before making search, PW 11 Satish Kumar gave notice to accused appellant Suresh Chandra under the provisions of Sec. 42, 50 of the NDPS Act, upon which, accused appellant Suresh Chandra gave his consent. But, nothing more than that has been mentioned in the fard of search and seizure Ex. P/5. The so called notice which was given to accused appellant Suresh Chandra by PW 11 Satish Kumar is Ex. P/9, in which there is no mention of the word Section 50 of the NDPS Act. In that notice Ex. P/9. , material wordings are like this "whether accused appellant wanted to be searched before any Magistrate or Gazetted Police Officer" and upon this, accused appellant Suresh Chandra gave his consent.