SHANTILAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) BOTH the abovementioned appeals are being decided by this common judgment as in both of them, common questions of law and facts are involved and they have been preferred against the judgment and order dated 8. 12. 2000 passed by the learned Special Judge, NDPS Cases, Chittorgarh in Sessions Case No. 37/98, by which he convicted all four accused appellants for the offence under section 8/18 of the Narcotic Drugs and Psychotrophic Substances Act, 1985 (hereinafter referred to as the `ndps Act') and sentenced each of them to undergo 10 years RI and to pay fine of Rs. one lac, in default of payment of fine, to further undergo two years RI.

(2.) THE facts giving rise to these two appeals, in short, are as follows:- PW12 Tulsiram, who was at the relevant time SHO Police Station Parsoli prepared a Parchakayami (Ex. P/27) on 18. 2. 1998 stating inter-alia that on 18. 2. 1998 at about 1. 15 PM he received a secret information from mukhbir to the effect that Shanti Lal (accused appellant No. 1 of appeal No. 18/2001) of village Anoppura Khardi and Bhanwarlal (accused appellant No. 2 of appeal No. 18/2001) of village Harpura and their two companion used to deal in contraband opium and they had proceeded in a white car alongwith contraband opium towards Jodhpur through Bheechor via Bhilwara Road for selling the contraband opium and that information was reduced into writing first in Rojnamcha and for making compliance of Section 42 (2) of the NDPS Act, that mukhbir information was sent to Dy. SP, Beghu through Constable Devi Singh (PW10) and also to SP, Chittorgarh and Addl. SP, Rawatbhata and a copy of which is Ex. P/19. THEreafter, PW12 Tulsiram alongwith Narain Singh (PW11), Sultan Singh (PW8), Badrilal (PW1) proceeded towards the spot in a Government vehicle, the driver of which, was Majid Mohammed and he also took two motbir witnesses, namely, Hazari Lal (PW4) and Gyan Singh (PW7) and when they reached near Bheechor crossing, ASI Ranvir Singh (PW5) also accompanied them and at 2. 00 PM they reached near turn before village Makhanganj and there they made nakabandi and at about 2. 30 PM, they saw a white Ambassador Car coming from Bheechor and it was got stopped and four persons came out from the car alongwith bags in their hands and thereafter, they tried to run away, but they were caughthold and on being asked they told their names as Shantilal, Bhanwarlal, Kailash and Udai Singh (accused appellants of both appeals ). THEreafter, PW12 Tulsiram gave notices under the provisions of Section 50 of the NDPS Act to each accused appellant and the notices given to the accused appellants Udai Singh, Kailash, Shantilal and Bhanwarlal are Ex. P/3. Ex. P/4, Ex. P/5 and Ex. P/6 respectively and all accused appellants gave their consent that they could be searched by PW12 Tulsiram. THEreafter, first search of accused appellant Shantilal was made and from him, a bag was recovered and on checking that bag, a white polythene bag, which was tied by thread, was found in it and on opening that polythene bag, black substance was found in it and on being tested, it was assessed that it was opium and on being asked, the accused appellant Shantilal told that he was not having any valid license for keeping that opium. THEreafter, the opium recovered from the accused appellant Shantilal alongwith the polythene bags was weighed on the spot and its weight was found to be 5 kgs. , out of which, two samples of 30-30 grms. each were taken for the purpose of chemical analysis and sealed separately and marked as A1 and A2 and the remaining opium was also sealed separately and marked as A. THEreafter, the search of accused appellant Bhanwarlal was made and from him, a bag was recovered and on checking that bag, a white polythene bag, which was tied by thread, was found in it and on opening that polythene bag, black substance was found in it and on being tasted, it was assessed that it was opium and on being asked, the accused appellant Bhanwarlal told that he was not having any valid license for keeping that opium. THEreafter, the opium recovered from the accused appellant Bhanwarlal alongwith the polythene bags was weighed on the spot and its weight was found to be 3 kgs. , out of which, two samples of 30-30 grms. each were taken for the purpose of chemical analysis and sealed separately and marked as B1 and B2 and the remaining opium was also sealed separately and marked as B. THEreafter, the search of accused appellant Kailash was made and from him, a bag was recovered and on checking that bag, a white polythene bag, which was tied by thread, was found in it and on opening that polythene bag, black substance was found in it and on being tasted, it was assessed that it was opium and on being asked, the accused appellant Kailash told that he was not having any valid license for keeping that opium. THEreafter, the opium recovered from the accused appellant Kailash alongwith the polythene bags was weighed on the spot and its weight was found to be 1 kg. , out of which, two samples of 30-30 grms. each were taken for the purpose of chemical analysis and sealed separately and marked as C1 and C2 and the remaining opium was also sealed separately and marked as C. THEreafter, the search of accused appellant Udai Singh was made and from him, a bag was recovered and on checking that bag, a white polythene bag, which was tied by thread, was found in it and on opening that polythene bag, black substance was found in it and on being tasted, it was assessed that it was opium and on being asked, the accused appellant Udai Singh told that he was not having any valid license for keeping that opium. THEreafter, the opium recovered from the accused appellant Udai Singh alongwith the polythene bags was weighed on the spot and its weight was found to be 1 kg. , out of which, two samples of 30-30 grms. each were taken for the purpose of chemical analysis and sealed separately and marked as D1 and D2 and the remaining opium was also sealed separately and marked as D. On the spot, fard of search and seizure was prepared by PW12 Tulsiram and the same is Ex. P/8. THE accused appellants Udai Singh, Bhanwarlal, Kailash and Shantilal were arrested through Ex. P/9, Ex. P/10, Ex. P/11 and Ex. P/12 respectively. THE specimen seals, which were affixed on the fard of search and seizure Ex. P/8 were also taken on a separate paper and the same is Ex. P/13. On the basis of parchakayami (Ex. P/27), FIR (Ex. P/28) was chalked out. THE seized articles were deposited in the Malkhana by PW12 Tulsiram and the copy of Malkhana Register is Ex. P/17a and at that time, the Malkhana Incharge was PW6 Moti Singh. THEreafter, through PW15 Dhannalal, the samples were went to the FSL, Udaipur and the copy of receipt is Ex. P/16. THE FSL report is Ex. P/24 where it has been stated as under: " On chemical and micro-chemical examination, sample contained in each of the packet marked A-1, B1, C1 and D-1 gave positive test for major chemical constituents of coagulated juice of opium poppy and contained 7. 94% (seven decimal nine four percent), 7. 94% (seven decimal nine four percent), 8. 23% (eight decimal two three percent) and 8. 12% (eight decimal one two percent) morphine respectively. " After usual investigation, police filed challan against the accused appellants in the Court of Special Judge, NDPS Cases, Chittorgarh. On 29. 5. 1998, the learned Special Judge, NDPS Cases, Chittorgarh framed charge for the offence under section 8/18 of the NDPS Act against each accused appellant and the same was read over and explained to each accused appellant. THE accused appellants denied the charge and claimed trial. THE prosecution in support of its case examined as many as 16 witnesses and got exhibited several documents. THEreafter, statements of the accused appellants under section 313 Cr. P. C. were recorded. After conclusion of trial, the learned Special Judge, NDPS Cases, Chittorgarh through his judgment and order dated 8. 12. 2000 convicted and sentenced the accused appellants for the offence under section 8/18 of the NDPS Act in the manner as indicated above holding inter-alia. (i) That it was a case of personal search and valid compliance of Section 50 of the NDPS Act has been made by the prosecution. (ii) That the prosecution has proved its case beyond all reasonable doubts against the accused appellants for the offence under section 8/18 of the NDPS Act. Aggrieved from the said judgment and order dated 8. 12. 2000 passed by the learned Special Judge, NDPS Cases, Chittorgarh, this appeal has been filed by the accused appellants.

(3.) BEFORE proceeding further, it would be worthwhile to state here the object and purpose of Section 50 of the NDPS Act. Object and purpose of Section 50 of the NDPS Act