SAHANOOR ALI Vs. C N B KOTA

JUDGEMENT

(1.) Heard learned counsel for the parties. The accused-appellants have preferred this appeal under Section 374 Cr.P.C. against the judgment of conviction and order of sentence dated 19.5.2004 passed by Special Judge (NDPS Cases), Kota in Sessions Case No. 18/02 whereby the appellants have been convicted for the offence under Section 8/18 of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "the Act") and have been sentenced to undergo rigorous imprisonment of 10 years and a fine of Rs. 1 lakh, in default of payment of fine to further undergo rigorous imprisonment of one year.

(2.) The brief relevant facts for the disposal of this appeal are that the appellants were tried for the offence under Section 8/18 of the Act on the premise that on 28.3.2002 on search being conducted by Inspector Shri Satyapal Singh Sabarwal, CNB, Kota in the present of independent witnesses narcotic drug opium weighing 4 kg was recovered from the joint possession of the appellants without any valid license or permit. In this regard, FIR No. 4/02 was registered at CNB, Kota Shri S.P. Kalra and when the raiding party was conducting "Nakabandi" in front of Panchwati Garden Restaurant, Jagpura, Kota, a Roadways Bus Registration No. RJ-20-4388 came from Jhalawar side at 10:00 a.m. which was stopped by Inspector Shri Satyapal Singh Sabarwal and when Inspector Shri Sabarwal and Constable Shri Birdi Lal Meena entered into the bus, the present appellants were found sitting together on Seat Nos. 37 & 38 of the bus in a suspicious condition. A green coloured bag and a water can was found in their possession. The prosecution case further is that the appellants were brought down from the bus and they were informed that the Inspector suspects that they are having some contraband with them and it is their right under Section 50 of the Act that they may be searched in the presence of a Magistrate or Gazetted Officer. It was also informed that Shri S. P. Kalra, Superintendent is present at the spot and he is a Gazetted Officer and search may also be conducted in his presence. In this regard, separate written notice was given to each of the appellants and each of them consented that he may be searched by Inspector Shri Satyapal Singh Sabarwal. According to prosecution, when search was made in the bag three cans were found in which a black coloured sticky substance was found, which on being tested was found to be narcotic drug opium. In the water can also narcotic drug opium was found and the total weight of the recovered substance was 4 kg from which two samples of 24 grams each were taken and sealed on the spot itself. The further case of the prosecution is that the remaining substance was also sealed and from the possession of appellant Mohd. Fiaz Ali two bus tickets from Jhalawar to Kota were also recovered. Statement of each of the appellants was recorded at the spot and after that they were arrested. After completion of search and seizure process, the raiding party alongwith arrested appellants and recovered substance came back to Office of CNB, Kota and the Inspector Shri Sabarwal sent a report under Section 57 of the Act to his official superior Shri D.V. Katpaliya, Superintendent upon which FIR No. 4/02 was registered. Further investigation in the case was undertaken by Shri Santosh Kumar Pathak, who sent the packet of sample for analysis to Government Opium & Alkaloid Works, Neemuch, (MP) from where chemical analysis report was received. Upon prima facie finding that appellants have committed offence punishable under Section 8/18 of the Act, a complaint was filed before the trial Court. The learned trial Court after hearing the prosecution as well as the appellants framed necessary charges and the prosecution in order to prove charges produced oral as well as documentary evidence whereas each of the appellants denied the allegation and evidence of the prosecution and specifically stated that they have been falsely implicated in the case. They also stated that their statements were not recorded. Opportunity to produce defence evidence was given to the appellants, but they did not avail it.

(3.) The trial Court after appreciating and evaluating the evidence produced on behalf of the prosecution and hearing both the parties arrived at the conclusion that the substance recovered from the joint possession of the appellants is a contraband, as the FSL report reveals that the sample gave positive test for the presence of 11.05% morphine. It was also found by the trial Court that the quantity of the contraband is more than commercial and during investigation compliance of every mandatory provisions of the Act was made by the Recovery Officer. Therefore, on the basis of the conclusions arrived at by the trial Court, the appellants were convicted and sentenced by the impugned judgment and order dated 19.5.2004 in the manner as has been stated hereinabove. Hence, the instant appeal.