BABU LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THESE are the three appeals filed by five accused appellants arising out of the judgment of learned Special Judge, NDPS Cases, chittorgarh dated 28. 1. 2003, whereby he convicted all the five accused appellants for the offence under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act 1985, hereinafter referred to as 'the Act' and sentenced each of them to undergo ten years' r. I. and to pay a fine of Rs. 1,00,000 and in default, to further undergo three months, s. I. The truck No. RJ 19g 3625 was also ordered to be confiscated. However, the proceedings against Nirbhay Singh were kept pending under Section 173 (8) Cr. P. C.

(2.) FACTS leading to this appeal are that on 25. 4. 2001, Anil Joshi, SHO, PS, Bhadesar received a secret information that the accused Babu Lal Jat and Jeevan Ram Bishnoi are purchasing poppy straw from the nearby village Muraliya and accused appellants, anr Khan, Ayub Khan and Shakeel Khan are loading the said poppy straw in the truck, who will be dropped at Chittorgarh border. The information was recorded in the rojnamcha and copy of it was sent after giv-ing notice to the notbirs. They saw one truck being No. RJ 19g 3625 near Dalvas in which five persons including the driver were sitting in the truck. All the five accused were given notice under Section 50 of the act and 59 bags of poppy straw were recovered, which on being weighed, were found to be 1765 kgms. Out of which, 51 were in gunny bags and 8 were in plastic bags. Two samples of 1 kg each were taken and sealed. The case was registered and accused were arrested. On enquiry, they told that they purchased it from Shabbir Khan and after investigation the charge-sheet was filed. The recovered articles and samples were deposited in the Malkhana and sent for chemical examination. After investigation, the challan was filed. All the five accused were charged for the offence under Section 8/15 of the Act, to which they pleaded not guilty. The prosecution examined 14 witnesses. The statements of the accused persons were recorded under Section 313 cr. P. C. They produced four witnesses in defence. After hearing the arguments, the learned trial Judge convicted and sentenced the accused appellants as above.

(3.) IT has been contended the learned counsel in all the three appeals appearing for the appellants that this is a fabricated case of poppy straw recovery because in this case, the principal accused, who was the owner of the truck viz. ; Budha Ram Bishnoi has been left out by the prosecution without there being any enquiry from him as to whom he handed over the truck and who was the driver of the truck. The accused persons were alleged to have been found in the truck but there was no link of the accused persons with the poppy straw. According to the learned counsel, the poppy straw, which has been recovered, is not tallying with the seized articles because they have not been proved in the evidence of Anil joshi, PW13 and their weight was also found to be short by 2 kg. As in the malkhana register and recovery memo, common weight of 59 bags has been shown to be 1765 kgms, but where the remaining 2 kg of poppy straw taken for sample has gone, is not clear from the testimony of recovery officer. Thus, there is a total violation of Section 55 of the Act and no presumption can be drawn from the mere recovery by virtue of Section 35 read with Section 54 of the Act. In support of their contentions, learned counsel have relied upon some authorities which will be discussed later on.