SARDAR SINGH JASWANT SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal has been filed by the accused appellant against the judgment and order dated 4/9/1999 passed by the learned Special Judge. NDPS Cases. Bhilwara in Sessions Case Nos. (101/93)(48/94) 111/97 by which be 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 Rigorous Imprisonment for ten years and to pay a fine of Rs. one lac, in default of payment of fine to further undergo RI for 11 months.

(2.) The facts giving rise to this appeal, in short are as follows: On 27/10/1991 at about 7.45 PM. PW 8 Bhanwarlal, SHO, Police Station Kotwali, Bhilwara prepared a parchakayami Ex. P/9 stating interalia that on that day as per telephonic message received from PW3 Jagdish Chandra, Head Constable, he alongwith PW1 Umrao Singh ASI and PW6. Dhanraj proceeded towards the Roadways But Stand Bhilwara from the Police Station. Kotwali and when he reached Roadways Bus Stand, he found PW3 Jagdish Chandra, who pointed out to PW8 Bhanwarlal that the person who was sitting on the Bench, had contraband opium and upon this, PW8 Bhanwarlal made motbirs, namely, PW1 Umrao Singh, ASI and PW3 Jagdish Chandra. Head Constable and enquired from the person who was sitting on the Bench and that person told his name as Sardar Singh (present accused appellant) and PW8 Bhanwarlal further asked accused appellant that he had suspicion that he had contraband opium with him and for that he wanted to make his search and the accused appellant was informed whether he wanted to be searched before the Magistrate or Higher Officer and upon this. he replied that since PW8 Bhanwarlal had come to know that he had contraband opium, therefore, search could be taken by PW8 Bhanwarlal himself. Thereafter PW8 Bhanwarlal in presence of motbirs PW1 Umrao Singh and PW3 Jagdish Chandra conducted the search of the accused appellants and during his search, a resign hand bag was recovered from him and on opening that hand bag, two polythene bags containing black substance were found in it and on seeing and being tasted, it was assessed that it was nothing, but contraband opium. Thereafter, it was weighed and its weight was found to be 1 kg. 500 grms. out of which, two samples of 50 grms. each were taken and sealed separately on the spot and marked as A and B and the remaining opium was also sealed separately on the spot and marked as C. On being asked, the accused appellant told that he did not possess any valid license to keep that opium. Thus, he has committed the offence under Section 8/18 of the NDPS Act. PW8 Bhanwarlal prepared the fard of search and seizure on the spot and the same is Ex. P/i and he also investigated the case himself and prepared site plan Ex. P/2 and arrested the accused appellant through arrest memo Ex. P/3. on that parchakayami, a regular FIR Ex. P110 was registered at Police Station City Kotwali, PW8 Bhanwarlal handed over the seized articles and samples to the Malkhana Incharge PW2 Chandra Prakash, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex. P/4. Thereafter, vide letter Ex. P/5 one sample marked A was sent to SP, Bhilwara through PW4 Radhey Shyam for sending it to FSL, Jaipur and PW4 Radhey Shyam handed over the sample to PW7 Laxman Singh, who was working in Chemical Branch, SP Office, Bhilwara and PW7 Laxman Singh sent the sample to FSL, Jaipur vide forwarding letter Ex. P17 through PW5 Ratan Singh and PW5 Ratan Singh deposited that sample in FSL, Jaipur on 19/11/1991 and obtained receipt Ex. P/6. The FSL report is Ex. P/il, where it was reported that the sample contained in the packet marked A gave positive tests for the chief constituents of the coagulated juice of opium poppy having 3.78% (three point seven eight per cent) morphine. After usual investigation police submitted challan for the offence under section 8/18 of the NDPS Act against the accused appellant in the Court of Session, Bhilwara. On 16/3/1994, the learned Special Judge, NDPS Cases Bhilwara framed charge for the offence under section 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 8 witnesses who got exhibited several documents. Thereafter statement of the accused appellant under section 313, Cr. P.C. was recorded. No evidence in defence was produced by the accused appellant. After conclusion of trial, the learned Special Judge. NDPS cases. Bhilwara through his judgment and order dated 4/9/1999, convicted the accused appellant for the offence under section 8/18 of the NDPS Act and sentenced him in the manner as indicated above holding interalia that the prosecution has proved its case beyond all reasonable doubt against the accused appellant for the said offence. Aggrieved from the said judgment and order dated 4/9/1999 passed by the learned Special Judge, NDPS Cases, Bhilwara, this appeal has been filed by the accused appellant.

(3.) In this appeal the following submission have been raised by the learned counsel for the accused appellant: