RAJENDRA SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal has bee filed by the accused appellant against the judgment and order dated 17. 2. 1997 passed by the learned Special Judge, NDPS Cases, Rajgarh District Churu in Sessions Case No. 79/96, by which he convicted the accused appellant for the offence under section 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 two years' R. I.

(2.) IT arises in the following circumstances:- On 13. 8. 1996 at about 10. 00 AM, PW 10 Jai Singh, SHO, Police Station Rajgarh lodged FIR Ex. P/16 with the Police Station Rajgarh District Churu stating inter-alia that on 13. 8. 1996 at about 6. 30 AM, PW 10 Jai Singh alongwith PW 6 Diwan Singh, PW3 Mohar Singh, PW 1 Kailash Chandra and PW 5 Ram Kishan proceeded in a Government Jeep for the purpose of checking and at about 7. 00 AM near the village Radwa they saw one person and that person, after seeing the police party, tried to hide himself in the bushes, but he was apprehended by the police and on being asked, he told his name as Rajendra Singh (Present accused appellant) and PW 10 jai Singh found the shirt of the accused appellant uplifting from his chest and when PW 10 Jai Singh touched that portion, he found that there was some substance behind it and on being asked what did it contain, the accused appellant did not reply and, thereafter, PW 10 Jai Singh prepared the fard Ex. P/15 under the provisions of Sec. 42 of the NDPS Act and, two motbir witnesses, namely, PW2 Phularam and PW 7 Kasiram were called for and notice was also given to them to become motbirs and the same is ex. P/7 and they gave their consent to become motbirs. Thereafter, PW 10 Jai Singh told accused appellant that he had contraband opium with him and therefore, he gave notice Ex. P/8 to the accused appellant under the provisions of Sec. 50 of the NDPS Act asking him whether he wanted to be searched before the Magistrate or Gazetted Officer and upon this, accused appellant gave his consent that he could be searched by PW 10 Jai Singh and the fard to consent of accused appellant is Ex. P/9. Thereafter, accused appellant was searched and on search, a Tagri was recovered from him and it was opened and four polythene bags containing liquid solid substance were found in it and on seeing, it was assessed that it was opium and the accused appellant was not having any valid license to keep that opium. Thereafter, it was weighed and its weight was found to be 750 grms. including four polythene bags and out of which, two samples of 50 grms. each were taken and sealed separately on the spot and marked as A1 and A2 and rest opium was also sealed on the spot separately and marked as A. The fard of search and seizure prepared by PW 10 Jai Singh on the spot is Ex. P/1. The site plan is Ex. P/3. The information which was sent y PW 10 Jai Singh to the superior officers is Ex. P/19. PW 10 Jai Singh handed over the recovered articles and samples to Malkhana Incharge PW 6 Diwan Singh, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex. P/5a. Thereafter, PW 6 Diwan Singh gave one sample to PW8 Jagdish Prasad, who took it with forwarding letter Ex. P/20 to SP office, Churu and after obtaining a fresh forwarding letter Ex. P/4 from SP Office from PW4 Yasin Khan, who was working in the SP Office, Churu, PW 8 Jagdish deposited the sample in the FSL, Jaipur on 19. 8. 1996 and obtained receipt Ex. P/6. The report of the FSL, jaipur is Ex. P/21, where it was reported that the sample contained in the packet marked A-1 gave positive tests for the presence of chief constituents of coagulated juice of opium poppy having 2. 47% (Two point four seven percent) Morphine. After usual investigation, the police Submitted challan against the accused appellant in the Court. On 1. 10. 1996, the learned Special Judge, NDPS Cases, Rajgarh Distt. Churu framed charge against the accused appellant for the offence under section 8/18 of the NDPS Act. The charge was read over and explained to the accused appellant. The accused appellant pleaded not guilty and claimed trial. During trial, the prosecution in support of its case examined as many as 10 witnesses and got exhibited several documents. Thereafter, the statement of accused appellant under section 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, Rajgarh District Churu through his judgment and order dated 17. 2. 1997 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 Section 8/18 of the NDPS Act. Aggrieved from the said judgment and order dated 17. 2. 1997 passed by the learned Special Judge, NDPS Case, Rajgarh Distt. Churu, the accused appellant has preferred this appeal.

(3.) THE Hon'ble Supreme Court in so many cases has held that the provisions of Sec. 50 of the NDPS Act are mandatory in nature and violation of these provisions would per se be fatal to the prosecution case or in other words, non-compliance of these provisions would have the effect of vitiating the entire trial.