RUGHNATH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an appeal under Sec. 374(2) Cr.P.C. against the judgment and order dt. 28.07.2008 passed by the Special Judge, NDPS Cases, Jodhpur in Sessions Case No. 75/2006 vide which, the appellants have been convicted for the offences under Sec. 8/15 of the Narcotic Drugs and Psychotropic Substances Act (for short, the NDPS Act') and sentenced them to undergo rigorous imprisonment for ten years with a fine of Rs. 1,00,000/ - and in default of payment of fine, to further undergo one year rigorous imprisonment. Background facts in a nutshell are as follows:

(2.) ON 15.12.2005 at about 8.10 pm., the S.H.O. Police Station, Karda, Bhabhoot Singh, received secret information that Hira Ram S/o. Punmaji, by caste Gaur, resident of Kotda, at present Raniwada is since long carrying on the activity of bringing Poppy Husk from Mewar and selling it at Kotda and nearby places. On the said day, he was likely to come on the Tractor attached with a water tank filled with Poppy Husk on the Sirohi Road and just little while ago, he had passed from Raniwada to Sewara, Sanchore. The said information was reduced in writing and sent to C.O. Bhinmal and one copy also sent to Superintendent of Police, Jalore through special messenger. Two independent witnesses were summoned and after completing the formalities, at about 8.30 pm. S.H.O. Bhaboot Singh proceeded in the Official Jeep along with other Police Officials. As per the said secret information, at about 8.50 pm., one tractor to which a water tank was attached, came from the side of Raniwada. Accordingly, it was stopped by the Police. Two people were sitting on the Tractor. On asking, the person sitting on the driver seat told his name Rughnath S/o. Ladu Ram Bishnoi Siyag. The name of the person sitting next to him was stated to be Sukhram S/o. Jetaji Jagu. On search, 19 bags filled with 22 kgs. of Poppy Husk in each bag and 7 bags filled with 20 kgs. Poppy Husk in each bag were recovered inside the water tank. Thus, 552 kgs. of Poppy Husk was recovered. The matter was investigated. Charge -sheet was filed and evidence was led. On the basis of same, the appellants were convicted under Sec. 8/15 of the NDPS Act and sentenced to 10 years Rigorous Imprisonment with fine of Rs. 1 lac and in default of payment of fine, the appellants were ordered to undergo another one year Rigorous Imprisonment. Aggrieved, the present appeal has been filed.

(3.) LEARNED counsel for the State however, while supporting the judgment of the Court below submitted that Section 42 does not apply to the facts of the present case. The recovery was from a public place and in transit, therefore, Section 43 is applicable. As such, there was no requirement to comply with Section 42 of the NDPS Act.