JITENDRA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These two criminal appeals arise out of the judgment and order dated 3.1.1996 passed by the learned Special Judge, NDPS Cases & Additional Sessions Judge No. 1, Kota, whereby he convicted accused appellants Jitendra, Tara Chand and Ballu under Sec. 8/21 and sentenced each of them to undergo rigorous imprisonment for 10 years each with a fine of Rs. one lac each, in default of payment of fine, each to further undergo two year's rigorous imprisonment.

(2.) Since both the appeals arise out of same judgment impugned in these appeals, the same are being disposed of by a common judgment.

(3.) The contextual facts depict that on 24.9.1994 P.W. 7 Shri Satish Kumar Khurana, Circle Officer, Kota City, received some secret information, by which he was informed that 2-3 persons riding on motor cycle were involved in selling smack in the area of Rangbari and Ballu Mommdan is the leader of these persons. The officer accompanied by raiding party reached Rangbari Road. After waiting there for some time they noticed a blue coloured motor cycle coming from the side of Mahaveer Nagar. They signaled the driver to stop the motor cycle. On being stopped the riders tried to made good their escape, but they were rounded up. On being asked, they disclosed their names as Ballu Musalman, Tara Chand and Jitendra. On being searched smack was recovered from the custody of all the three accused appellants. Prior to their personal search, Satish Kumar Khurana informed them of their right that they can have their search conducted in the presence of any Magistrate or a Gazetted Officer. Accused appellants gave their consent and stated that they are willing to get their search conducted by S.K. Khurana himself. P.W. 7 Shri S.K. Khurana, prepared consent memos Ex. P. 2, Ex. P. 3 and Ex. R 4. Seizure memo Ex. P. 1 was drawn. The witnesses, as per the experience identified the recovered brown coloured powder as smack. Accused appellants were arrested vide arrest memo Ex. P. 5, Ex. P 6 and Ex. P 7. The motor cycle No. RJH-7997 was also seized vide Ex. P. 8. P.W. 7 S.K. Khurana, submitted the written report Ex. P 10 for registering the case. On the basis of the above written report, F.I.R. No. 139/94 Ex. P. 14 was registered. P.W. 7 S.K. Khurana deposited the seized contraband, in the Malkhana of the Police Station, P.W. 6 Brij Bhusan Mishra, Malkhana Incharge, made entries of the articles deposited in malkhana register Ex. P. 15. He handed over the three sealed packets to P.W. 5 Sarvar Singh, Constable for depositing the same with the Forensic Science Laboratory, who in turn deposited the sealed packets, obtained the receipt and submitted the receipt of F.S.L. Ex. P. 11 at police station. Ex. P. 12 is the report of Forensic Science Laboratory which indicates that the sample contained in each of the packets marked A, B and C gave positive tests for the presence of diacietyl morphine (heroin). P.W. 4 Deendayal, S.H.O., conducted the investigation and prepared Ex. P. 9 site plan. He also recorded the statements of the witnesses under Sec. 161 Crimial P.C.