BILLU Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment dated 11-10-93, passed by the Sessions Judge, Chum, by which the learned Sessions Judge, convicted accused-appellant Billu for the offence under Sections 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and sentenced him to undergo ten yearsT rigorous imprisonment and a fine Rs. 1,00,000 and in default of payment of fine further to undergo 1-1/2 months rigorous imprisonment.

(2.) PW 3 Bhanwar Lal, Station House Officer, Police Station Rajgarh, on 14-4-93, received a secret information through a Mukhbir that two persons are illegally bringing poppy husk from the side of Radwa Road. He recorded the information under Section 42 (1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act) in the Roznamchma vide Ex. PS and along with the police party, proceeded towards the place of destination. In the way he, also took two Motbirs, viz., Bhani Ram and Nasir Khan after service of notice Ex. P-I on them. He reached at the destination at about 8.00/8.30 a.m. alongwith the Motbirs. The raiding party saw two persons carrying one small gunny-bag each. On seeing the police party, they tried to run away but they were caught- hold by the patrolling party. After their detention and on being enquired, they disclosed their identity as Billu and Darshan Singh. Thereafter, the appellant was asked whether he wanted to be got searched before a Gazetted Officer or a Magistrate and he showed his desire to be got Searched by the Station House Officer. The memo Ex. P-6 regarding the option, given by the appellant, was prepared. Thereafter, the search of the bag, carried by the appellant, was taken, which contained eight kilograms of poppy husk. Two samples of 50 grams each were taken and the same, alongwith the remaining poppy husk contained in the bag, were sealed and the recovery memo Ex. P-2 was prepared. The appellant was not carrying any licence for the retention of the poppy husk and, therefore, he was arrested. The samples as well as the remaining poppy husk were deposited in the Malkhana of Police Station Rajgarh, and the information under Section 57 of the Act was forwarded to the higher officer. The investigation was, thereafter, handed over to PW 6 Hukma Ram-the Senior Station House Officer posted at Police Station Rajgarh. The samples were sent for F. S. L. examination to the State Forensic Science Laboratory, Jaipur, which, on chemical examination, was found to be that of opium. After completion of the investigation, challan was filed against the accused. The prosecution, in support of its case, examined six witnesses. The accused-appellant did not examined any witness in defence. The learned Sessions Judge, after trial, convicted the accused-appellant for the offence under Sections 8/15 of the Act and sentenced him as stated at the very out-set. It is against this judgment, convicting and sentencing the appellant that be has preferred this appeal.

(3.) It is contended by the learned Counsel for the appellant that the compliance of Section 42 of the Act has not been made in the present case which vitiates the trial and the appellant, therefore, deserves to be acquitted. The learned public Prosecutor, on the other band, has supported the judgment passed by the learned Sessions Judge, convicting and sentencing the appellant for the offence under Sections 8/13 of the Act. I have considered the submissions made by the learned Counsel for the parties.