MOHAN LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal has been preferred against the judgment and order dated 27.10.2007 in Sessions Case No.171/2005 whereby the learned trial court has convicted the accused-appellant under Section 8/18 of the NDPS Act and has sentenced for 10 years' rigorous imprisonment together with a fine of Rs.1,00,000/-, in default whereof, to further undergo one year's simple imprisonment.

(2.) The brief facts of the case are that on 07.08.2005, at about 11.05 A.M., Jodharam Gurjar, SHO, PS Chhipa Baraud was patrolling in his circle with other police personnel, viz., Rajendra Kumar, Nek Mohammed, Badlu Ram, etc. During the course of patrolling, when they reached near Peepal Kheri and on a small bridge, they started checking. At that time, two persons were coming on foot from Rawan Village having one bag each in their hands. After seeing the police party and jeep, they started running and due to suspicion, they were intercepted and they could not assign any good reason for running from there. Anil Kumar, police constable was sent to bring independent witnesses but no independent witness was available there and hence in the presence of Rajendra Kumar and Nek Singh, notice under Section 50 of the NDPS Act was given to them. They consented that SHO can take their search. During the course of search, 6 kgm. opium was recovered from the bag, which was carried by the present appellants. Samples were taken according to the procedure and other formalities were completed in compliance of the provisions contained in NDPS Act. On this, FIR was registered and after usual investigation, charge-sheet was filed against the accused-appellants. Charges were framed against the accused-appellants for the offences under Sections 8/18 and8/29 of the NDPS Act. The prosecution examined as many as 13 witnesses and exhibited 22 documents. The accused-appellant was examined under Section 313 Cr.P.C. No defence witness was produced and exhibited two documents. After considering the material available on record, the learned trial court acquitted Radheshyam and Bhanwarlal but convicted and sentenced the accused-appellant as aforesaid. Hence, this appeal.

(3.) The contention of the present appellant is that all the witnesses are interested witnesses and they-cannot be relied upon. No independent witness has been produced by the prosecution. There is no link evidence that the samples remained intact till they reached the FSL. There is material difference in the weight of the samples, which were taken at the time of seizure and reached to the FSL. The compliance of the provisions of Section 50 of the NDPS Act was not done and further Bhanwarlal has been acquitted on the same evidence but the present appellant has been convicted, which is against the criminal jurisprudence and hence the present appellant should also be acquitted of the offence.