MOHD RAFIKUL ISLAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE appellant Mohd. Rafikul Islam filed this Jail appeal against the judgment dated december 10, 2005 of Special Judge Narcotic Drugs and Psychotropic Substances Act Cases, Ajmer in sessions Case No. 10 of 2004 convicting and sentencing the accused appellant under section 8/21 of NDPS Act for 10 years RI with fine of rs. 1,00,000 in default of payment of fine to suffer two years RI.

(2.) BRIEF facts of the case are that on April 10, 2004 Constables Shrimanlal, Bheem Singh and Chandra prakash of Police Station GRP Ajmer were on patrolling duty, at that time in Purna to Ajmer train No. 582 two suspects were seen having one plastic bottle and two bags. On asking about their names, they perturbed, thereafter one person disclosed his name Mohd. Rafikul Islam and another mohammed Mofjul. As both persons were perturbed a doubt was created that they were having contraband and both of them were got down from the train to platform Nos. 4-5 on south side Bridge. On this shrimanlal, Constable handed over a written report ex. P. 20 to the Incharge Police Station GRP, Ajmer through Bheem Singh, Constable (PW. 3 ). On this as the Incharge Police Station Shivdutt Singh was on leave, Officiating Incharge Police Station Bhawani singh (PW. 4) sent that report to Deputy superintendent of Police GRP, Jaipur through Chandra prakash Sharma (Constable ). Thereafter Chandra prakash Sharma (PW. 2) Dy. S. P. under Section 42 of the NDPS Act sent the information vide Ex. P. 21 to the SP. The Officiating Incharge Police Station with investigating box reached at the place where the accused were at Platform. Bheem Singh, constable was sent with notice to Chief Collector of Tickets railway Station Ajmer for arranging two independent witnesses. Bhanuprakash Bayla and Ramprasad Gotam t. Cs. gave their consent for becoming independent witnesses vide Ex. P. 1. Accused Mohammed Rafiqul islam was given notice under section 50 of the NDPS act Ex. P. 17. Accused agreed for searching by chandra prakash Sharma, Dy. S. P. and for that he has given his consent Ex. P. 3. Chandra Prakash Sharma, dy. S. P. first got himself searched before the independent witnesses and thereafter he searched the accused who was having Plastic Bottle with him. Inside plastic bottle one white polythine having tap over it polythine bags having contraband in dried condition was found. On cheking bag of the accused along with clothes one Bread packet was found. Recovered dried narcotic drug was examined by narcotic detection kit and it was confirmed that the accused was having narcotic drug, for which he was not having any licence. On weighing the Narcotic dried substance it was found one kilogram and 400 gms. Two samples of each 30 gms. were sealed and marked as A1 and A2. The remaining narcotic substance weighing one kilogram and three hundred forty gms was separately sealed alongwith polythine packets and marked A. Bag along with clothes were also sealed and marked B. Mohammed Rafikul Islam was further searched and from his pocket one notice under section 50 NDPS Act Ex. P. 17 and some papers were found which were recovered through Ex. P. 16. The accused was arrested vide Ex. P. 15 arrest memo. Sealed material along with accused taken to Police station and in Rojnamcha report Ex. P. 25, entries were made and FIR Ex. P. 26 was chalked out. Sealed packets were deposited in the Malkhana and information under section 57 of the NDPS Act was forwarded to the higher officers through Ex. P. 24. For examination of the sealed material, the same were sent to FSL. Vide Ex. P. 31 the FSL opined that in packet marked A1 gave positive tests for the presence of Diacetylemorphine (HEROIN ). After investigation the challan was filed. After hearing arguments, the accused was charged for the offence under section 8/21 of the NDPS Act, to which he denied. The prosecution in support of its case examined 10 witnesses and exhibited 40 documents. Statement of accused under section 313 Cr. P. c. was recorded. After hearing arguments of both the sides the trial court vide its judgment and order dated december 10, 2005 convicted and sentenced the accused appellant as indicated above.

(3.) MR. S. L. Songra, learned counsel appearing for the accused appellant placing reliance on paramjeet Singh and anr. vs. State of Rajasthan (2008 (2) Cr. L. R. (Raj.) 1338) and State of rajasthan vs. Onkar lal (2008) (2) Cr. L. R. (Raj.)1247) argued that the prosecution has not been able to prove the case against the accused appellant beyond reasonable doubt, hence he be acquitted for the offence charged against him. No independent witnesses were made available to identify the recovered HEROIN, and on account of non compliance of the mandatory provisions of the NDSPS Act, the order of conviction passed by the trial court is liable to be quashed.