SRI RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal arises out of the judgment dated 22.1.96 passed by learned Special Judge, NDPS Act Cases, Jodhpur whereby the appellant has been held guilty of the offence under Sec. 8/18 of the NDPS Act, 1985 (hereinafter referred as 'the NDPS Act') and sentenced to undergo 10 years R.I. and a fine of Rs. 1,00,000.00 or in default to undergo two years R.I.

(2.) The prosecution case is that Shri Vikram Singh, SHO, Bhojasar received information by Mukhbir on 24.3.94 at 2.30 PM that the appellant Shri Ram is engaged in the trade of contraband opium and opium is lying in his shop. SHO, Vikram Singh reached on the shop and found the appellant standing outside, who was served the notice under section 50 of the NDPS Act and on search of the shop the appellant himself produced from his shop one polythene packet containing 220 grams of contraband opium. The sample was taken and sealed and after recording the FIR and usual investigation, a charge-sheet was submitted against the appellant. The appellant denied the charge. The prosecution produced oral and documentary evidence. The learned Special Judge, NDPS Act Cases, replied upon the testimony of PW 8 Vikram Singh, PW 4 Motisingh, PW 5 Ugamsingh and PW 7 Bhanwar Singh and recorded the conviction and the sentence as stated above.

(3.) I have heard learned counsel tor the appellant and the learned Public Prosecutor for the State. Learned counsel for the appellant has argued that the compliance of mandatory provision under Sec. 50 of the NDPS Act has not been made. The opium has not been recorded from the exclusive and conscious possession of the appellant as the shop did not belong to him. Mukhbir information taken down by Shri Vikram-Singh was not sent to the superior officer and prosecution has also failed to prove that the sample remained intact until it was delivered to the Forensic Science Laboratory, Rajasthan, Jaipur. On the other hand, learned Public Prosecutor has submitted that the offence under section 8/18 of the NDPS Act has been proved beyond reasonable doubt. The opium has been recovered from the shop in his possession and not from his person, therefore, compliance of the provision under section 50 of the NDPS Act was not required at all. The prosecution has also proved that the sample remained intact and was not tampered with in any manner until it was deposited with the Forensic Science Laboratory Rajasthan, Jaipur.