BABU RAM Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal has been filed by the accused-appellant against the judgment and order dated 19-11-1999 passed by the learned Special Judge, NDPS Cases, Bhilwara in Sessions Case No. (118/92) (24/94) 88/97 by which he convicted the accused appellant for the offence under Section 8/18 of the Narcotic Drugs and Psychotrophic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') and sentenced him to undergo ten years rigorous imprisonment and to pay fine of Rs. one lac. In default of payment of fine, to further undergo R.I. for six months. By the same judgment, the learned Special Judge acquitted two other accused Pramod Kumar and Maskoor.

(2.) The facts giving rise to this appeal, in short, are as follows :- P.W. 1 Pramod Kumar Sinha, Inspector, in the Office of District Opium Officer, Bhilwara lodged a complaint Ex. P/21 in the Court of Session, Bhilwara stating inter alia that on the directions of the District Opium Officer, Bhilwara, a Raiding Party under the leadership of P.W. 1 Pramod Kumar, was constituted and this raiding party apart from him consisted of P.W. 2 Rajaram, Mohd. Rehan Kuresi, P.W. 3 Jagdish Prasad Sharma, P.W. 4 Mohan Chand and P.W. 5 Raghunath Pandey and on 11-3-1992 at about 11.00 a.m. they reached Chungi Naka No. 2, Bhilwara for the purpose of checking to prevent smuggling of contraband articles and at about 2.00 p.m. a Truck bearing No. UP-12/8596, came there, which was coming from Chittorgarh and going towards Bhilwara and on suspicion it was stopped for checking and in that Truck, three persons were sitting and the person, who was sitting on the Driver seat told his name as Pramod Kumar and the Khalasi of the said Truck told his name as Maskoor and the third person, who was sitting in the Cabin told his name as Baburam (present accused appellant) and these three persons were asked whether they wanted to be searched before Magistrate or Gazetted Officer and upon this, they desired that may be searched by the members of the raiding party and two motbirs, namely, P.W. 6 Shambhoo Singh and P.W. 7 Budhi Prakash were also called and, thereafter, the search of these persons was taken by P.W. 3 Jagdish Prasad Sharma and on search, two plastic bags containing black substance were recovered from the accused appellant Baburam and on being tasted, it was assessed that it was nothing, but contraband opium and these two plastic bags were marked as A/1 and A/2 and on further search, two more plastic bags were recovered and they were marked as B/1 and B/2 and thus, in all four plastic bags were recovered on the spot and they were weighed and the total weight of the opium contained in these four packets was found to be 2 kg. 300 grms. The opium contained in these four bags were mixed and two samples of 24 grms. each were taken for the purpose of chemical analysis and they were sealed on the spot. The fard of search and seizure Ex. P/1 was prepared on the spot by P.W. 1 Pramod Kumar. The specimen seal impressions were taken on Ex. P/2. The accused appellant was arrested through arrest memo Ex. P/3. The Truck in question was seized through seizure memo Ex. P/6. The information about search and seizure was sent to District Opium Officer, Bhilwara by P.W. 1 Pramod Kumar through Ex. P/8. Thereafter, one sample was sent to the Government Opium and Alkaloid Works, Neemuch for chemical analysis through letter Ex. P/25 and the receipt of depositing sample at Neemuch is Ex. P/22. The report of the Government Opium and Alkaloid Works, Neemuch is Ex. P/23, in which it was reported that the sample was found by qualitative/quantitative analysis to be opium within the meaning of Section 2XV of NDPS Act, 1985. After usual investigation, complaint was filed in the Court of Session, Bhilwara. On 8-10-1993, the learned Special Judge, NDPS Cases, Bhilwara framed charges for the offence under Section 8/18 of the NDPS Act against the present accused appellant and on 29-4-1995, charges for the offence under Section 8/18 read with 28 of the NDPS Act were framed against two accused, namely, Pramod Kumar and Maskoor. The charges were read over and explained to the accused persons. They denied the charges and claimed trial. During trial, the prosecution in support of its case examined as many as seven witnesses and got exhibited some documents. Thereafter, statements of the accused appellant and other accused persons under Section 313, Cr. P. C. were recorded. In defence, no evidence was produced by the accused persons. After conclusion of trial, the learned Special Judge, NDPS Cases, Bhilwara through his judgment and order dated 19-11-1999 acquitted two accused persons, namely, Pramod Kumar and Mashkoor, but convicted the present accused appellant for the offence under Section 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 doubts against him for the offence under Section 8/18 of the NDPS Act. Aggrieved from the said judgment and order dated 19-11-1999 passed by the learned Special Judge, NDPS Cases, Bhilwara, this appeal has been filed by the accused appellant.

(3.) In this appeal, the learned counsel appearing for the accused appellant has made the following submissions:-