KULWANT SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Appellant Kulwant Singh and Sumer Singh (since acquitted) were tried for the offence under Section 8 read with Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred "N.D.P.S. Act") by learned Special Judge, N.D.P.S. Cases, Sri Ganganagar in Sessions Case No. 30/93. The appellant Kulwant Singh was held guilty for the aforesaid offence and sentenced to 12 years' rigorous imprisonment and Rs. one lac fine else to further undergo rigorous imprisonment for one year. Sumer Singh alias Shera was acquitted of the charge by the same judgment. Feeling aggrieved by the aforesaid judgment of conviction and sentence, this appeal has been preferred by Kulwant Singh accused.

(2.) I have heard the learned Counsel for the appellant and the learned Public Prosecutor. The learned Counsel for the appellant has confined his arguments on two points only and therefore it is not necessary to narrate the prosecution case in detail. The learned Counsel for the appellant has raised the contention that the mandatory provision under sub-section (2) of Section 42 N.D.P.S. Act has not been complied with. Secondly the prosecution has also failed to establish that the samples sent to Forensic Science Laboratory, Jaipur were kept intact and sealed till those were deposited there for chemical examination. The learned Public Prosecutor appearing on behalf of the State has tried to support the impugned judgment.

(3.) In order to appreciate the arguments put forth on behalf of the appellant brief facts may be stated here. C.I. S.H.O., Sadul Shahur Sukhdeo Singh received a secret information on 27-5-93 at 1.45 a.m. that Kulwant Singh son of Tara Singh by caste Soni, resident of Ward No. 13, Sadul Shahar has 9/10 Kg. contraband opium in his possession and he will proceed to Punjab to seel the opium. The secret information was taken down in writing Ex. P15 and a copy of the same Ex.P16 was forwarded to the official superior i.e. Circle Officer Dy. S. P. Sangaria, which was received by him on the same day at 2.00 a.m. C.I. S.H.O., Sadul Shahar Sukhdeo Singh (P.W.10) also recorded reasons of his belief Ex.P17 that search warrant or authorisation could not be obtained without affording opportunity for the concealment of the contraband opium or facility for the offender to escape. The contents of Ex.P17 show that a copy was forwarded to S.P., Sri Ganganagar. Shri Mahendra Singh Choudhary, Dy. S.P. Sangaria (P.W.11) arrived at Police Station, Sadul Shahar with the police party and laid a trap around the house of the appellant Kulwant Singh forming three parties, one headed by him and other two by C.I., S.H.O. Sukhdeo Singh (P.W.10) and Jagdish Singh, S.I. (P.W.5). P.W.2 Mani Ram Verma and P.W.3 Banshidhar Sharma were associated as motbirs. It is alleged that Kulwant Singh came out of his house on a Motor cycle with a bag tied on it. He was encircled by the police party and after compliance of the provisions under Section 50 N.D.P.S. Act, search was conducted and 3 Kg. 900 gms. semi liquid contraband opium was recovered from the bag. Two samples were taken and sealed marked A1 and A2. In other packet 2 Kg. 700 gms. contraband opium was seized and samples taken were marked B1 and B2. Kulwant Singh was arrested and at his instance 3 Kg. 500 gms. contraband opium contained in three polythene packets was recovered from an iron box kept in the residential room of his house and Rs. 36,000/- the sale proceeds of contraband opium. The key of the box was found in the pocket of his shirt. The samples taken and sealed from each polythene packet were marked D1, D2, E1, E2 and F1, F2. Sample of white powder from a plastic bottle recovered from the box was also taken marked G1. After complying all the proceedings on the spot F.I.R. Ex.P19 was lodged at Police Station, Sadul Shahar by Sukhdeo Singh C.I., a case under Section 8/18 N.D.P.S. Act was registered and after due investigation charge-sheet was submitted against appellant Kulwant Singh and Sumer Singh (since acquitted) in the Court of Special Judge, N.D.P.S. Cases, Sri Ganganagar. Appellant Kulwant Singh denied the accusation and stated in his statement under Section 313, Cr. P.C. that he has been falsely implicated in this case because he asked the S.H.O., Sadul Shahar to make payment of the charges of stiching his clothes and clothes of other police personnels. There was an altercation between him and Sukhdeo Singh, S.H.O. for the payment of the charges before 3 or 4 days. He was going on Motor Cycle on 26-5-93 at 6 p.m. with Pampa Ram to purchase a shop having Rs. 36,000/- which he had arranged by selling his plot for Rs. 40,000/-. He was taken to Police Station by Sukhdeo Singh, S.H.O. and Constables where Sukhdeo Singh, C.I. took Rs. 36,000/- and seized the Motor Cycle also. Second day he came to know that a false case about recovery of contraband opium has been fabricated against him.