PAPPU Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS Jail appeal on behalf of accused appellant Pappu Son of Gulab Chand, is directed against the judgment and order dated 8th August 2002 of the learned Special Judge (N. D. P. S. Act), Chhabra, whereby the accused appellant was convicted and sentenced under Section 8/18 of the N. D. P. S. Act, 1985 (for short, `the Act') to ten years rigorous imprisonment and a fine of Rs. 1,00,000/-; in default of payment of fine, to further additional undergo six months' rigorous imprisonment.

(2.) BRIEF facts of the case relevant for disposal of this appeal are that on 10. 4. 1997, PW-8 Jai Narain Sher, Deputy Superintendent of Police, Chhabra, lodged First Information Report at Police Station Chhipa Barod, wherein it was alleged that accused Pappu S/o Gulab Chand was accused and arrested in case No. 128/97 under Section 454, 380, IPC, by PW-15 Jai Lal Verma, S. H. O. , Police Station Chhipa Barod and when he was in custody he gave an information under Section 27 of the Indian Evidence Act to PW-15 Jai Lal Verma, S. H. O. , that the stolen opium of his share has been hidden by him in his field. The details of field/place were also given. The said information was reduced in writing. The information was sent to the Superintendent of Police, Baran. The accused was taken to his field. Thereafter the accused was apprised of his right about search either in presence of Magistrate or Gazetted Officer. Two independent witnesses were called upon and thereafter the contraband `opium' weighing 4kg. 300 gram was recovered by digging the particular place of field as per information given by accused, in polythene bag and the net weigh of the contraband was 4kg. 250 gram. Two samples of 50 gram each were taken and sealed. The remaining contraband weighing 4kg. 150 gram was sealed separately. The case was investigated and on completion of investigation a charge sheet was filed against the accused appellant under Section 8/18 of the Act.

(3.) THE learned Public Prosecutor, on the other hand, contended that the recovery of contraband in the present case was made from public place, therefore, the provisions of Section 50 of the Act are not applicable in the present case. It was further contended that variance in weighment of samples of the contraband as stated by the learned counsel for the appellant is not prejudicial in any manner to the accused, therefore, the accused is not entitled to any benefit. He contended that the judgment of the learned Trial Court is based on oral and documentary evidence and the conviction and sentence of the accused appellant is quite legal and in accordance with the provisions of law.