CHHOTU RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment dated 15-9-93, passed by the Special Judge, N.D.P.S. Cases, Jodhpur, by which the learned Special Judge convicted the accused-appellant for the offence under Section 8/17 read with Section 18 of the Narcotic Drugs and Psychotropic Substances Act (in short, 'the Act') and sentenced him to undergo ten years' rigorous imprisonment and a fine of Rs. 100,000.00 and in default of payment of fine further to undergo one year's rigorous imprisonment.

(2.) PW 2 Baktawar Singh, Station House Officer, Police Station, Jaitaran, was on a Special Checking Duty in connection with "Road Safety Week" campaign. On 10-1-93, he was checking the motor vehicles, as per directions of the Superintendent of Police, Pali, on Jaitaran-Agewa road and had laid a barrier. At about 2.00 p.m., the accused came on a moped-vickey. On search 1.730 kgs. of opium milk and 430 grams of opium were recovered from the dicky of the moped, which were seized. Two samples one from the opium milk and the other of the opium, weighing 30 grams each, were taken, which were separately sealed. The moped and the key to the dicky were, also, seized, site plan was prepared and the accused was arrested. The seized materials were deposited in the Malkhana of Police Station, Jaitaran. The sealed samples were sent for F.S.L. examination to the State Forensic Science Labo ratory, Jaipur, which were found positive for the opium. The accused was challaned in the Court of the learned Special Judge, N.D.P.S. Cases, Jodhpur, and the prosecution, in support of its case, examined seven witnesses. The accused did not examine any witness in his defence. The learned trial Court, after trial, convicted and sentenced the accused-appellant for the offence under Section 8/17 read with Section 18 of the N.D.P.S. Act. It is against this judgment that the appellant has preferred this appeal challenging his conviction and sentence passed by the learned Special Judge.

(3.) It is contended by the learned counsel for the appellant that (i) the compliance of the mandatory provisions of Section 42 of the Act has not been made; (ii) there is a violation of Section 55 of the Act as the seal used is the seal of Police Station, Jaitaran and not the personal seal of the Station House Officer; (iii) independent witnesses have not supported the prosecution case; (iv) the goods recovered have not been produced in the Court; and (v) the informant and the investigating officer is one and the same person, which vitiates the whole trial. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below and submitted that there is no violation of Section 42 or Section 55 of the Act and the independent witnesses of the recoveries, though have turned hostile but they have partly supported the prosecution case. It has, also, been contended by the learned Public Prosecutor that no objection regarding the use of the seal of the Police Station, Jaitaran, was raised at the earlier stage, moreover, no prejudice has been caused to the appellant due to this fact. It has, also, been contended that the goods recovered were produced in the Court at the later stage and even the non-production of the goods and the investigation by the same person, who made the seizure and later-on conducted the investigation, do not, in any way, prejudice the case of the appellant and unless the prejudice has been caused to the accused, the trial and conviction are not vitiated.