SHANKER LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal has been filed by the accused appellants against the judgment and order dated 16. 1. 1999 passed by the learned Special Judge, NDPS Cases, Chittorgarh in Session Case No. 214/97 (102/96) by which he convicted the accused appellant for the offence under Sec. 8/18 of the Narcotic Drugs and Psychotrophic Substances Act, 1985 (hereinafter referred to as `the NDPS Act') and sentenced them to undergo ten years rigorous imprisonment and to pay 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 24. 6. 1996 at about 11. 00 PM, PW 14 Prithvi Singh, SHO, Police Station Chanderiya District Chittorgarh made Parchakayami (Ex. P/24) stating inter-alia that he received a secret information at about 8. 00 PM from mukhbir to the effect that accused appellant no. 2 Parthu, resident of Paroli and accused appellant No. 1 Shanker, also resident of Paroli had gone to Mishro-ki- pipli for purchasing opium and after purchasing it, they were coming on cycle alongwith the opium and in case the search was not conducted within time, there was every possibility that they would conceal the opium and the purpose of information would be frustrated. Since PW 14 Prithvi Singh found that information reliable, therefore, he reduced it into writing under the provisions of Sec. 42 (1) of the NDPS Act and the copy of it Ex. P/22 was sent by him to SP as well as to Dy. SP, Chittorgarh through PW 7 Subhash Chandra. PW 14 Prithvi Singh also got registered that information in the Rojnamcha Ex. P/27. THEreafter, PW 14 Prithvi Singh along with raiding party consisting of PW 1 Himmat Singh, PW 10 Kamal Singh, PW 13 Janak Singh, PW 12 Dadu Singh, PW 6 Manilal and others proceeded at about 8. 15 PM towards the spot in a Government Jeep and reached the place known as "mataji Ki Pandoli" at about 8. 30 PM and made Nakabandi and they also took two motbirs, namely, Narendra Kumar (PW 5) and Shambhu Singh (PW 2 ). THEreafter, they saw two persons coming on cycle and they were recognized by PW 1 Himmat Singh as accused appellant and after calling them, they were asked to stop, but the person named as Shankar ran away from the scene after leaving his cycle, but another accused person was caught red-handed on the spot and on being asked, he told his name as Parthu (present accused appellant No. 2) and there was a bag lying on the handle of his cycle and he was informed about the secret information of the mukhbir that he had contraband opium and he was given a notice Ex. P/4 under Sec. 50 of the NDPS Act by PW 14 Prithvi Singh asking him whether he wanted to be searched before the Magistrate or Gazetted Officer and upon this, he gave his consent that search could be made by PW 14 Prithvi Singh and, thereafter, accused appellant No. 2 Parthu was searched and on search, a bag was recovered and it was opened and polythene bag containing black-brawn colour liquid substance was found in it and on being tasted, it was assessed that it was opium ad on being asked, accused appellant No. 2 Parthu told that he has no valid license to keep that opium. THEreafter, it was weighed and its weight was found to be 1 kg. , out of which, two samples of 30 grms. each were taken and sealed separately on the spot and marked as A/1 and A/2 and rest opium was also sealed on the spot separately and marked as A. THEreafter, the bag, which was lying on the cycle of accused appellant No. 1 Shankar, who ran away after leaving it, was opened and in it, polythene bag containing black-brown colour liquid substance was found and on being tasted it was assessed that it was opium. It was weighed and its weight was found to be 500 grms. , out of which two samples of 30 grms. each were taken and sealed separately on the spot and marked as B/1 and B/2 and rest opium was also sealed on the spot separately and marked as B. PW 14 Prithvi Singh prepared the fard of search and seizure on the spot and the same is Ex. P/3. THE fard of specimen impression of seal is Ex. P/5. THE cycles of both accused appellants Shankar and Parthu were seized through fards Ex. P/6 and Ex. P/7 respectively. THE accused appellant No. 2 Parthu was arrested on the spot through arrest memo Ex. P/2, while accused appellant No. 1 Shankar was arrested on 17. 10. 1996 through arrest memo Ex. P/17. A detailed report to make compliance of Sec. 57 of the N. D. P. S. Act was sent by PW 14 Prithvi Singh to the higher officers and the same is Ex. P/23. PW. 14 Prithvi Singh chalked out regular FIR Ex. P/25. THE seized articles and samples were handed over by PW 14 Prithvi Singh to Malkhana Incharge PW 9 Chain Singh, who deposited the same in the malkhana and made entries in the Malkhana Register Ex. P/20. THEreafter, vide letter Ex. P/11, two samples were sent to S. P. Office, Chittorgarh through PW 7 Subhash Chandra for sending them to F. S. L. for chemical analysis. THEreafter, PW 15 Jamnalal, who was working at the relevant time in the SP Officer, Chittorgarh, gave a fresh forwarding letter Ex. P/12 addressed to F. S. L. , Jaipur alongwith two samples to PW 7 addressed to FSL, Jaipur alongwith two samples to PW 7 Subhash Chandra, who deposited the same in the F. S. L. , Jaipur and obtained receipt Ex. P/13. THE F. S. L. report is Ex. P/29, where it was reported that the sample contained in the packet marked A/1 and B/1 gave positive tests for the presence of Chief constituents of coagulated juice of opium poppy having 5. 60% (Six point one eight percent) Morphine respectively. After usual investigation, police filed challan in the Court against the accused appellants. On 28. 2. 1997, the learned Special Judge, NDPS Cases, Chittorgarh framed charges for the offence under Sec. 8/18 of the NDPS Act against the present accused appellants, but on 26. 11. 1998, amended charge was framed against accused appellant No. 1 Shanker. THE charges were read over and explained to the accused appellants. THEy denied the charges and claimed trial. During trial, the prosecution in support of its case examined as many as 16 witnesses and got exhibited some documents. THEreafter, statements of the accused appellants under Section 313 Cr. P. C. were recorded. In defence, no evidence was produced by the accused appellants. After conclusion of trial, the learned Special Judge, NDPS Cases, Chittorgarh through his judgment and order dated 16. 1. 1999 convicted and sentenced the accused appellants in the manner as indicated above holding inter-alia that the prosecution has proved its case beyond all reasonable doubts against the accused appellants for the offence under Sec. 8/18 of the NDPS Act. Aggrieved from the said judgment and order dated 16. 1. 1999 passed by the learned Special Judge, NDPS Cases, Chittorgarh, this appeal has been filed by the accused appellants.

(3.) THIS point relates to Sec. 42 (1) of the NDPS Act and to see whether compliance of Sec. 42 (1) of the NDPS Act has been made in this case or not, the evidence and the documents produced by the prosecution have to be looked into.