KAJOD SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal has been filed by the accused appellant against the judgment and order dated 18. 6. 1996 passed by the learned Special Judge, NDPS Cases, Bhilwara accused appellant for the offence under section 8/18 of the NDPS Act and sentenced him to under go RI for ten years and a fine of Rs. one lac, in default of payment of fine, to further undergo RI for two years.

(2.) THE facts giving rise to this appeal, in short, are as follows:- On 29. 4. 1990 at about 8. 15 AM, PW 2 Ram Singh, SHO, Police Station Kachhola lodged a written report Ex. P/1 with C. O. , Thana Shakargarh District Bhilwara stating inter-alia that upon instructions of Superintendent of Police, Bhilwara at about 1. 00 AM, he went for Nakabandi at Tiraha Amargarh, where PW 7 Dilip Singh and PW 1 Ajij Mohd. Constables posted at Police Chowki Amargarh also joined him and they were also patrolling at that place. It was further stated in the report that thereafter PW 2 Ram Singh alongwith PW 7 Dilip Singh and PW 1 Ajij Mohd. proceeded towards Bhojgarh Hotel and reached there at about 2. 15 a. m. and at that time, he saw one person carrying beg on his shoulder and was going towards Hotel. That person was stopped and two motbirs, namely, Dildar and PW 4 Naresh Chandra were also called. On being asked, that person told his name as Kajod Singh (present accused appellant) and he further told that the was carrying doda post (poppy straw) in the bag for which he was not having any valid licence and thus, he has committed offence under Sec. 8/18 of the NDPS Act. THEreafter, doda post found in the bag was weighed and its weight was found to be 11 kg. , out of which, two samples of 300 grms. each were taken and sealed separately on the spot and marked as B and C and the remaining doda post (poppy straw) was also sealed separately on the spot and marked as A. THE fard of search and seizure prepared on the spot by PW 2 Ram Singh is Ex. P/3. THEre accused appellant was arrested through arrest memo Ex. P/4. THE recovered articles and samples were handed over by PW 2 Ram Singh to the Malkhana Incharge PW 8 Ram Prasad, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex. P/12. On that report, a regular FIR Ex. P/2 was chalked out at Police Station Shakargarh District Bhilwara THEreafter, through letter Ex. P/8, two samples were given to PW 9 Pradeep Singh, who handed over the same to PW 5 A. V. Joseph, who was working in the SP Office, Bhilwara and, thereafter, PW 5 A. V. Joseph handed over the samples alongwith letter Ex. P/5 to PW 3 Sharafuddin for depositing them in the FSL, Jaipur and on 15. 5. 1990. PW 3 Sharafuddin deposited the samples in the FSL, Jaipur and obtained receipt Ex. P/5-I. THE FSL report is Ex. P/9 in which it was reported that each of the sample contained in the packet marked B and C gave positive test for the presence of chief constituents of opium, hence the sample was of dried crushed capsules of poppy from which juice has been extracted. After usual investigation, police submitted challan against the accused appellant in the Court of Magistrate, from where the case was committed to the Court of Session. On 5. 5. 1992, learned Sessions Judge, Bhilwara framed charge for the offence under Sec. 8/18 of the NDPS Act against the accused appellant. THE charge was read over and explained to the accused appellant. THE accused appellant denied the charge and claimed trial. During trial, the prosecution in support of its case, examined as many as 9 witnesses and got exhibited several documents. THErefore, statement of the accused appellant under Sec. 313 Cr. P. C. was recorded. After conclusion of trial, the learned Special Judge, NDPS Cases, Bhilwara through his judgment and order dated 18. 6. 1996 convicted the accused appellant for the offence under section 8/18 of the NDPS Act and sentenced in the manner as indicated above holding inter-alia:- 1. That in the present case, provisions of Sections 42 and 50 of the NDPS Act are not applicable. 2. That link evidence has been produced by the prosecution showing that the seals on the samples from the date of seizure till they reached the FSL, Jaipur remained in-tact. 3. That prosecution has proved its case beyond all reasonable doubts against the accused appellant for the offence under Sec. 8/18 of the NDPS Act. Aggrieved from the said judgment and order dated 18. 6. 1996 passed by the learned Special Judge, NDPS Cases, Bhilwara, this appeal has been filed by the accused appellant.

(3.) ON this point, the case of the learned counsel for the accused appellant is that since personal search of the accused appellant was made, therefore, compliance of Sec. 50 of the NDPS Act was necessary and in absence of this, whole trial against the accused appellant stands vitiated and he is entitled to acquittal on this ground alone.