BASHIR AND ORS. Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE appellants have been convicted under Sections 21 and 29 of Narcotic Drugs and Psychotropic Substan­ces Act, 1985 (in short NDPS Act) and sentenced to undergo 10 years R.I. and a fine of Rs. 1,00,000 or in default to under­go two years R.I. on each count by judg­ment dated 21-10-95 passed by learned Special Judge, NDPS Act cases, Jodhpur. The appellant Radheyshyam has been fur­ther convicted under Section 25 of NDPS Act, 1985 and sentenced to undergo 10 years R.L and a fine of Rs. 1,00,000 or in default to undergo two years R.I. All the substantive sentences against the appel­lant shall run concurrently.

(2.) SHO Khanda Falsa, Shri Ashwani Kumar received source information on 9-12-94 that Hazi Saradeen resident of Kundal will reach from Pakistan after taking heroin from Phalodi to Soorsagar in a Commander Jeep No. RJ-19 C 3934. The information was sent to C.O. Shri Shorabh Srivastava who came to the police station and directed Devaram Con­stable to summon two motbirs and to report on duty near Gangelav Talab on new Chandpole Road, SHO Khanda Falsa and C.O. Shri Shorabh Shrivastava with police party arranged a Nakabandi at about 1.07 a.m. SHO Khanda Falsa in­formed on wireless that a jeep is coming with 'Jaidurga Phalodi' written in bold let­ters on stepney. C.O. Shri Shorabh Shrivastava stopped the Commander jeep coming from the side of Chondpole Road and a person with a gun jumped out of the jeep and tried to run away but fell down. Bhaggaram and Ramesh Kumar chased that person. Motbirs could not be avail­able during the night, Appellant No. 2 Radheshyam was driving the jeep and Ap­pellant Nos. 1 and 3 were sitting in the jeep and on inquiry gave the name of the per­son who ran away-Saradeen the father of the appellants Nos. 1 and 3. Heroin 1 kg. was recovered from the folds of Tehmad of appellant Mohammad on his Jama TalasL The tool box below the driver seat was opened and 950 gms. heroin was recovered in a packet. All the necessary documents were prepared and the appel­lants were arrested on the spot. After com­pleting usual investigation, challan was filed against the appellant and the investigation against Saradeen was kept pend­ing under Section 173 (8), Cr. P.C

(3.) TWO folds arguments have been made on behalf of the appellants challeng­ing the conviction and the sentence. First­ly, it is contended that the search and seizure was made between sun-set and sun­rise from the conveyance i.e., Commander jeep, without obtaining warrant for search and seizure but the grounds of beliefs that search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender have not been recorded by the empowered officer. Therefore, it is non-compliance of man­datory provision of Section 42 of NDPS Act which vitiates the conviction. Second­ly, it is argued that the prosecution has failed to prove that the samples sealed on the spot remained intact and sealed throughout from the date of seizure to the date these were deposited for chemical examination in Forensic Science Laboratory, Jaipur. In view of this it is contended that it is not proved beyond reasonable doubt that FSL report Ex. P-21 relates to the articles alleged to have been recovered from the appellants learned Public Prosecutor has supported the im­pugned judgment that the provisions of Section 42 of NDPS Act have been com­plied with and by producing all link evidence, it has been proved that samples were not tampered with. These memo of seal impression was sent along with samples and as revealed from forwarding letter Ex. P. 19 and the seal on the samples was tallied with the specimen seal impres­sion which is clearly mentioned in the report Ex. P-21. Learned Counsel for the appellants relied upon 1994 Cr LJ 3702: 1994 (1) EFR 516 (SC), State of Punjab v. Balbir Singh.