RAHUL DUGGAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) - This criminal appeal under Section 374 of the Code of Criminal Procedure has been filed against the judgment dated 23.5.2008 passed by the learned Special Judge, N.D.P.S. Act Cases (Additional Sessions Judge No. 2, Kota) in Sessions Case No. 3/2007 whereby the appellant has been convicted and sentenced under Section 8/21 of the N.D.P.S. Act for a period of one year and six months rigorous imprisonment with a fine of Rs. 2,000/-, in default of payment of fine to further undergo 15 days rigorous imprisonment.

(2.) Briefly stated, the facts are that PW-2 Ram Gopal Singh ASI of Police Station Bheemganj Mandi Kota while discharging functions of SHO of Police Station at about 2.00 p.m. started from Police Station for petrolling purpose along with Surajpal Singh ASI, Govind Singh FC 1445 and Shivraj FC 1034. While starting from the Police Station they also took the investigation box with them. While they reached near the turn of Chopra farm gali, the accused was seen coming from the side of Angrejon ki gali on a motor cycle with eperson sitting at the pillion seat. The motor cycle was bearing no number. On seeing the police party, the accused tried to turn the motor cycle in opposite direction but the petrolling party stopped him and before the search could be made, it was directed by PW-2 Ram Gopal Singh to one constable Govind Singh to make arrangement of one independent witness but nobody came forward to become independent witness, as such Govind Singh FC 1445 was made independent witness. The accused were asked to disclose their identity. The accused appellant disclosed his name as Rahul Duggal and the person sitting on pillion seat of the motor cycle disclosed his name as Surendra Singh son of Bhanwar Singh. The police party searched both the accused. From the right hand side pocket of the shirt of Rahul Duggal smack was recovered which was kept in eight packets. By the smell it was revealed that the same was smack. On being weighed the recovered contraband material, the total weight of the smack found was 18 gm and 260 mg and the net weight of the smack was 11 gm and 980 mg. A sample was taken of 2 gm smack which was kept in separate polythene bag. Thereafter, it was kept in a white small bag and was sealed by the seal of the witness and was marked 'A'. The remaining smack weighing 9 gm 980 mg was also sealed in a separate white cloth bag. On being asked as to whether the accused was having any license to keep the smack, he denied to have any license. On the search of the other accused Surendra Singh, smack weighing 1 gm 990 mg was found and the net weight of the smack was found 850 mg which was kept in a polythene bag which was sealed by the seal of PW-2. The packets were also marked A,B,C.D.E. On reaching the Police Station, a report was lodged by PW-2 Ram Gopal Singh on which F.I.R. No. 38/2007 was registered under Section 8/21 of the N.D.P.S. Act. After investigation, charge-sheet was filed in the Court of Special Judge, N.D.P.S. Act Cases (Additional District and Sessions Judge No. 2, Kota) against the accused-appellant and Surendra Singh. The charges were framed against the accused-appellant and Surendra Singh son of Bhanwar Singh under Section 8/21 of the N.D.P.S. Act to which the accused denied. In support of its case the prosecution examined 8 witnesses and tendered some documents. After close of the prosecution evidence, in the statement recorded under Section 313 Cr.P.C., the accused stated that they were falsely implicated in the case. No evidence in defence was produced. The learned trial Court after hearing both the sides acquitted accused Surendra Singh and convicted the accused-appellant as stated here-inabove. Hence, this appeal.

(3.) It has been contended by the learned counsel for the appellant that he is in jail since 1.3.2007 up-till date and the sentence which has been awarded to the accused is one year and six months along with fine, the contraband smack recovered from the possession of the accused is below the prescribed commercial quantity, therefore, the case of the accused should be considered leniently on the point of sentence.