UMESH KUMAR CHOBEY Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These two appeals arise out of the judgment dated 8-11-1993, passed by the Special Judge, N.D.P.S. Cases, Dholpur, by which the learned Special judge convicted the accused-appellant for the offence under Sec. 8/20(b) of the Narcotic Drugs and Psychotropic Substances Act, and sentenced him to undergo ten years, rigorous imprisonment and a fine of Rs. 1,00,000.00 and in default of payment of fine further to undergo one year's rigorous imprisonment. S.B. Criminal (Jail) Appeal No. 497 of 1993 has been preferred by the appellant through jail, in which Miss Rajesh Kandwal, Advocate, has been appointed as the amicus curiae. S.B. Criminal Appeal No. 8 of 1994 has been filed by the accused-appellant through his counsel. As both these appeals arise out of the same judgment, therefore, these appeals are being decided by a common judgment.

(2.) On 14-10-1992, at about 10.00 a.m., P.W.l Prem Chand Nyola, Circle Officer, Dholpur, received a secret information from some Mukhbir that some person has come by a bus from Agra and is carrying Charas in a small white tin-box. On receiving this information, PW 1 Prem Chand Nyola proceeded towards Jaggan Chauraha, Dholpur, and, also, directed the In-charge of Police Station, Kotwali, Dholpur, on wireless to reach Jaggan Chauraha with the police party. PW 4 Kailash Chand Meena, S.H.O., along with the other police personnels, wept to Jaggan Chauraha and found the accused-appellant carrying a tin-box in his hand. The accused was stopped by Prem Chand Nyola. Prem Chand Nyola, in the presence of two Motbir witnesses, viz. PW 7 Krishna Kumar and PW 8 Vishan Swaroop, took search of the accused and of the tin-box carried by him. On search of the tin-box carried by the accused, it was found containing 5.500 kgs. of Charas. Two samples of 30 grams each were taken from the recovered Charas and the samples as well as the remaining Charas were sealed. Thereafter the police party came to Police Station, Kotwali, Dholpur, where the samples and the remaining Charas were deposited with PW 2 Asha Ram, H.C., who was the Incharge of the Malkhana of the Police Station and the F.I.R. was registered. From the Malkhana, the samples were taken by PW 5 Rajendra Singh for F.S.L. examination to the State Forensic Science Laboratory, Jaipur, where the samples were deposited and on F.S.L. examination it was found as Charas. The prosecution, in support of its case, examined eight witnesses. The learned Special Judge, after trial, held that the prosecution has proved the case against the accused beyond reasonable manner of doubt. The learned trial Court, therefore, convicted and sentenced the accused-appellant for the offence under Sec. 8/20(b) of the Narcotic Drugs and Psychotropic Substances Act, as stated above. It is against this judgment dated 8-11-93, that the accused-appellant has preferred these two appeals.

(3.) It is contended by the learned counsel for the appellant that in the present case the compliance of the provisions of Sections 42,50 and 57 of the Act has not been made. According to the learned counsel for the appellant, neither the report, which Mr. Prem Chand Nyola received from the Mukhbir, was recorded by him in the Roznamcha of the Police Station nor a copy of the same was sent to his immediate officer superior as is required under Sec. 42(2) of the N.D.P.S. Act. The investigation report was, also, not sent immediately as is required under Sec. 57 of the Act and the appellant was, also, not informed that if he so likes she could be searched in the presence of a gazetted officer or the nearest Magistrate. Non-mentioning of this fact in the memo that the accused was given an option, clearly shows that the compliance of Sec. 50 of the Act was not made. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below and submitted that the compliance of all the aforesaid provisions of the N.D.P.S. Act was made, by the investigating agency and there is no contravention of any of the provisions of the Act and, therefore, the judgment passed by the learned lower Court, convicting and sentencing the accused-appellant, does not require any interference.