KAILASH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These two criminal appeals under S. 374(2) of the Code of Criminal Procedure, 1973 (for short 'the Code' hereinafter) and Criminal Revision No.1151/2003 are directed against the judgment and order dated 23-9-2003 passed by Special Judge, N.D.P.S. Cases, Churu (for short 'the trial Court' hereinafter) in Special Sessions Case No. 01 /2003 whereby the trial Court convicted both the appellants-Kailash and Suresh Kumar for the offence under Ss.8/20 of the Narcotic Drugs and Psycho- tropic Substances Act, 1985 (for short 'the N.D.P.S. Act' hereinafter) and sentenced each of them to undergo 10 years rigorous imprisonment with a fine of Rs. 1,00,000/- each, in default of payment of fine to further undergo two years rigorous imprisonment. The trial Court further directed confiscation of the Maruti car No. R.J. 18-C-4828 which was registered in the name of revisionist-Suresh Kumar. Aggrieved by the judgment and order impugned as also confiscation of the aforesaid Maruti car, both the appellants have filed the instant two separate criminal appeals and petitioner Suresh Kumar has filed the instant revision petition.

(2.) Briefly stated the facts of the case are that on 5-2-2003, P.W. 6 Ranveer Singh, Station House Officer, Ratan Nagar received a secret information telephonically at 6.00 p.m. that a white coloured Maruti car bearing No. R.J. 18-C 4828 loaded with Ganja is coming from Fatehpur to Churu side. The said Information was reduced to writing vide Ex. P-13. The secret information Ex. P-13 was sent to the Supdt. of Police and Circle Officer, Churu. P.W. 6 Ranveer Singh SHO Ratan Nagar along with police personnel namely P.W. 4 Dharmpal Singh H.C., Constable's P.W. 7 Virendra Singh, P.W. 8 Ramnarayan, P.W. 2 Ranveer Singh and P.W. 10 Shivbhagvan driver of the Jeep started from the police station and reached Ratan Nagar town, where from, he took two Motbirs P.W. 1 Kisan Kumar and P.W. 3 Dilip Singh. The Motbirs were served with notice Ex. P-1 and Ex. P-7, respectively for obtaining their consent and they consented to be the Motbirs in writing on the aforesaid notices. Thereafter, P.W. 6 Ranveer Singh along with police party and Motbirs reached Onkar Ashram near Churu-Ramgarh Road, Ratan Nagar and started arranging Nakabandi. At about 7.15 a.m., while Nakabandi, a white coloured Maruti car bearing No. R.J. 18-C- 4828 came from Ramgarh side. The car was got stopped. On being asked, the driver of the said car disclosed his name as Suresh Kumar s/o Nandlal r/o Surajgarh, the present appellant and other person who was found sitting by the side of accused-appellant- Suresh Kumar disclosed his name as Kailash s/o Hariprasad r/o Fatehpur, district Sikar appellant in Cr. Appeal No. 1205/2003. The appellants were given notice purporting to be under S. 50 of the N.D.P.S. Act vide Ex, P-3 and Ex. P-4. They were given option whether they be searched in presence of nearest Magistrate or Gazetted Officer or by concerned S.H.O. They expressed their option and agreed for the search of their own and the car the S.H.O. concerned i.e. P.W. 6. Both the appellants gave consent in writing to be searched by S.H.O. On the car being checked, it was found carrying 12 bundles of Ganja, each bundles weighing 16 kg. totalling to 194 kg. and 850 gram. From each of the bundles, 250 grams of contraband Ganja was taken as sample in plastic bags and the plastic bags of samples were sealed on the spot. The remaining contraband Ganja was also sealed on the spot. Both the appellants were found carrying contraband Ganja without licence or permit. After usual investigation, police filed challan against the appellants for the offence punishable under Ss. 8/20 of the N.D.P.S. Act.

(3.) Before the trial Court the prosectition produced as many as 10 witnesses and tendered in evidence documents Ex. P-1 to Ex. P-43. Accused-appellants made statement under S. 313 of the Code and denied allega- tion and produced as many as six witnesses in defence as also tendered in evidence documents Ex. D-l to Ex. D-6.