MANAK LAL AND ANOTHER Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment dated 12-5-93, passes by the Sessions Judge, Bhilwara, by which the learned Sessions Judge convicted and sentenced the accused-appellants for the offence under Sec. 8/18 of the Narcotic Drugs and Psychotropic Substances Act.

(2.) The appellants were tried by the learned Sessions, Judge, Bhilwara, for the offence under Sec. 8/18 of the Narcotic Drugs and Psychotropic Substances Act (in short, "the-Act). According to the prosecution case on 14-5-92, PW 6 Pramod Kumar Sinha, the District Excise Inspector, Narcotic Bureau Bhilwara, along with Raghunath Pandey and Ram Gopal Driver, was on general checking duty and was proceeding on a jeep to Octroi Post No. 2 of Bhilwara, at about 3.30 p.m. near Circuit House, Bhilwara. The Checking Pan saw two suspects standing near the Circuit House, Bhilwara, carrying a brief-case, some suspicion arose, the jeep was stopped and an enquiry was made from the suspects they disclosed their names as Manak Lal and Ganesh Ram. The brief-case, which they were carrying, was searched in the presence of two Motbir witnesses, viz., PW 1 Shanti Lal and PW 5 Shanker Lal. Before making the search the accused were informed that if they wanted to get themselves checked in the presence) a gazetted officer or a Magistrate tale search can made in their presence. The accused-appellants showed their desire that they have no objection if the search is made by Mr. Promod Kumar Sinha. Pramod Kumar Sinha and other members of the checking party thereafter gave their search to the accused and thereafter the search of the brief case carried by the accused, was made. On search, 6.850 kgs of opium was found in the briefcase. Two samples of 25 grams each were taken from the opium. The opium and the two samples were separately sealed and the accused were arrested. The sample of the opium was sent by Pramod Kumar Sinha for F.S.L. examination through PW 4 Prahlad, who deposited the same at the Forensic Science Laboratory, Nimach. After chemical examination, the sample was found to be that of opium. The prosecution, in support of its case, examined seven witnesses. PW 1 Shanti Lal and PW 5 Shanker Lal are the two Motbir witnesses, in whose presence the accused were searched, the opium was recovered and seized and the accused were arrested. PW 1 Shanti Lal is an employee of the Narcotics Department. Both these witnesses have not supported the prosecution case and they were declared hostile. PW 2 Raghunath Pandey was the member of the Checking Party, who along with Pramod Kumar Sinha, went on general checking duty in a jeep and saw the accused standing near Circuit House, Bhilwara, and who, on the directions of Pramod Kumar Sinha and in his presence, searched the briefcase and recovered the opium. PW 3 Ram Gopal was the driver of the Jeep, in which the checking party was proceeding towards the octroi post No. 2, Bhilwara, for general checking and in the way saw these two accused-appellants standing near the Circuit House, the jeep was stopped, the suspects were searched and on search the opium was found in the brief-case carried by the accused. PW 4 Prahlad is the Constable in the Excise Department, who took the sample for F.S. L. examination to the aforesaid laboratory at Nimach and handed-over the same at the Laboratory and obtained the receipt Ex. P.9 PW 6 Pramod Kumar Sinha was the Inspector in the Excise Department, who was on a general checking duty and while on checking duty on 14-5-92, he suspected the two persons (accused-appellants) who were standing near the Circuit House, Bhilwara, and carrying a brief-case. On suspicion being arose, the jeep was stopped and the enquiry was made from the accused and on search of the brief-case, 6.850 kgs. of opium was recovered. Two samples of 25 grams each were taken from the opium and the opium as well as the two samples were sealed and the accused were arrested. He thereafter lodged the report. The samples and the sealed opium were kept in his possession because the District Excise Officer, who was the in charge of the Double Lock, was on touring duty. The samples and the remaining sealed opium were deposited in the Malkhana. The sample was sent for chemical examination on the next day through PW 4 Prahlad-the Constable of the Excise Department. The accused-appellants did not produce any evidence in defence. The learned Sessions Judge, after trial, convicted the accused-appellants for the offence under Sec. 8/18 of the Act and sentenced each of them to ten years rigorous imprisonment and a fine of Rs. 1,00,000.00 each and in default of payment of fine further to undergo three years' rigorous imprisonment. It is against this judgment that the appellants have preferred this appeal.

(3.) It is contended by the learned counsel for the appellants that the mandatory provisions of Sections 42 and 50 of the Act have not been complied with and, therefore, the trial and the conviction of the appellants stand vitiated. It has, also, been contended by the learned counsel for the appellants that the samples and the remaining opium recovered from the appellants have not been produced in the Court and, therefore, it cannot be said that the sample, which was sent for chemical examination, was recovered from the appellants and was that of the opium. It has, also, been contended by the learned counsel for the appellants that there are material contradictions in the statements of the witnesses regarding the recovery of the opium, the packets which were sealed and the accused from whose possession the brief-case was recovered. Some of the witnesses have stated that the brief-case was recovered from the possession of accused Manak Lal while the other witnesses have stated that it was recovered from the possession of accused Ganesh Ram. It has, also, been contended by the learned counsel for the appellants that the Malkhana Register does not bear the signatures of PW 4 Prahlad, Constable, who took the sample for F.S.L. examination to the aforesaid Laboratory at Nimach. The investigation was conducted by the same person who had made the recoveries, arrested the accused and lodged the report. Lastly, it is contended that the link evidence that the seals on the samples remained intact throughout is missing. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below.