SHYAM KUMAR VAISHNAV Vs. STATE

JUDGEMENT

(1.) ACCUSED-appellant Shyam Kumar has preferred this appeal against the judgment of conviction and order of sentence dated 23.12.2003 passed by learned Special Judge, Narcotic Drugs & Psychotropic Substance Cases, Jaipur in Sessions Case No. 11/2003 whereby the appellant has been convicted for offence under Section 8/21 of Narcotic Drugs & Psychotropic Substance Act, 1985 (hereinafter referred to be as 'the Act'), and has been sentenced to undergo rigorous imprisonment for ten years' and fine of Rs.1,00,000/- (rupees one lac) and in default thereof to further undergo two years' rigorous imprisonment.

(2.) THE relevant facts of the case are that on 5.1.2003, S.H.O. Chhagan Lal (PW-14), PS-Brahmpuri alongwith other police personnel consisting of three constables and a driver set out for routine patrolling duty at about 8.15 pm. THE patrolling party reached Sita Ram Bazar, Brahmpuri at about 9.15 pm and on the turning point, they saw a person in the suspicious circumstances who, on seeing the police jeep, tried to hide himself. On being asked as to what he was doing there, he could not answer satisfactorily; rather put his left hand which raised all the more suspicion. On enquired he disclosed his name as Shyam Kumar having smack in the pocket of his jacket. After detaining him, two independent witnesses i.e. Rahim Khan and Sharfuddin @ Baba were summoned. After informing about his legal right of getting the personal search done before a Gazetted Officer or a Magistrate, and after obtaining his consent PW-14 Chhagan Lal, SHO gave his own search and then proceeded for personal search of the accused Shyam Kumar. On search, pocket of jacket was found to contain 418 gms a substance which appeared and smelt like smack and after deducting the weight of the pouch, the substance weighed as 411.500 gms. Two samples of 5.0 gms each were taken out and were marked as 'A' and 'B' respectively whereas remaining substance was sealed and marked as 'C. All packets marked 'A' 'B' & 'C were sealed separately in one packet and marked as 'D'. THE accused was arrested and on return to the police station, the sealed articles were deposited in the Malkhana and case was registered. Sh.Dilip Sharma, S.H.O. Amer was entrusted with the investigation who got the sealed samples examined from Forensic Science Laboratory (for short as 'FSL'). THE report giving positive test of diacetylmorphine was received.

(3.) THE learned counsel for the appellant assailed the order impugned on various grounds: