CHHOGA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment dated 2.3.93, passed by the Additional Sessions Judge No.2, Sri Ganganagar, by which the leamed Additional Sessions Judge convicted the accused-appellant for the offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced him to undergo eleven years rigorous imprisonment and a fine of Rs. 1,00,000/-. The learned Additional Sessions Judge also, ordered for the forfeiture of the opium recovered from the possession of the accused-appellant.

(2.) The appellant was tried by the learned Additional Sessions Judge No.2 Sri Ganganagar for the offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985(for short, the Act). The case of the prosecution is that on 26-2-92, PW 1 Mani Ram, A.S.I., Police Station, Suratgarh, at 10.30 a.m., when he returned from Lalgarh Police Station, was informed by the Head Constable that C.R.P.F. Personnel at Sadhuwali Check Post have caught one person who was carrying opium with him. On this information he left the Police Station and went to Sadhuwali Check Post and reached there at about 10.50 a.m. He found the accused-appellant sitting there and was informed that this person is carrying opium with him. Two Motbir witnesses, viz., PW 6 Mohan Lal and PW 5 Hans Raj, were called and after informing the accused that if he wants to get himself searched in the presence of a gazetted officer or the nearest Magistrate then that can be arranged. Upon this, the accused informed that he himself can take his search. Upon this, the search of the accused was conducted and in a bag carried by the accused, two polythene bags were recovered which were containing opium. The total weight of the opium recovered from the possession of the accused-appellant was 1.750 Kgs. Two sample of 30 grams each were taken and the samples as well as the remaining opium were scaled. The scaled packets were thereafter deposited in the Malkhana of the Police Station with PW 4 Jugal Kishore, wherefrom the samples were sent for F.S.L. examination to the State Forensic Science Laboratory and on F.S.L. examination the samples were found to be of opium. The prosecution, in support of its case, examined seven witnesses. The accused did not examine any witness in his defence. The case of the accused, in defence, is that he has been falsely implicated in the case and actually he had gone to Sadhuwali to meet Jagdish here he was caught-hold. The learned trial Court, after trial by his judgment dated 2-3-93, convicted and sentenced the accused-appellant as stated above. It is against this judgment that the appellant has preferred this appeal.

(3.) Though a number of submission have been made by the learned counsel for the appellant while challenging the conviction and sentence of the accused-appellant but it is not necessary to deal with all these submissions made by the learned counsel for the appellant because the present appeal can be disposed of only on one point, i.e., that there is a non-compliance of Section 42 of the Act which provision has been held mandatory by the Honble Supreme Court in the case of: The State of Punjab v. Balbir Singh and, therefore, the conviction and sentence passed by the learned trial Court against the accused-appellant cannot sustain.