SANWAR RAM Vs. STATE

JUDGEMENT

(1.) The appellant Sanwar Ram filed this appeal against the judgment dated July 16, 2004 of Special Judge Narcotic Drugs and Psychotropic Substances Act Cases, Ajmer in Sessions Case No. 27 of 2003 convicting and sentencing the accused appellant under section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to undergo 11 years' RI and pay a fine of Rs. 1.00 lakh and in default of payment of fine to further undergo Three years' RI.

(2.) Brief facts of the case are that on May 29, at 11.30 a.m. Chenaram Sub Inspector, Incharge Police Station (PW.4) received information from an informant that Truck No.RJ 19 G 3115 coming from Bhilwara which is being plied by Driver Sanwarram is containing full of crushed capsule of opium poppy. Information was recorded by the SI in Ex. P.9, reads as under :

(3.) Mr. M.L. Vishnoi, learned counsel appearing for the accused appellant argued that no offence under section 8/15 of the NDPS Act is made out against the accused on the evidence produced by the prosecution. The learened counsel averred that the independent witnesses PW.1 Umrao Singh and PW.2 Jagdish Singh, who were motbirs were declared hostile and hence in the absence of proof of narcotic drug recovered from the accused appellant, the jdugment of conviction is liable to be set aside. The provisions of section 42 of the NDSPS Act have not been complied with. PW.6 Ratan Lal and PW.7 Gopal, who weighed the material loaded in the truck but both these witnesses did not support the prosecution case and both of them have been declared hostile. In these circumstances, the case of the prosecution cannot be believed and it is concocted case. The independent witnesses produced by the prosecution have all been declared hostile and the accused appellant should not be convicted on the basis of evidence of one department only. The material sealed was not resealed at the police station and hence the provisions of sections 55 and 57 of the NDPS Act has not been complied with and thus the judgment of conviction and sentence is liable to be set aside. Sanwarram was only servant (Khalasi)and not driver and he was not knowing about the narcotic drug loaded in the truck and thus he is entitled to be acquitted. Chenaram was not SHO Police Station and he was only Incharge and thus he was not authorised under section 42 of the NDPS Act to proceed and thus the whole proceedings are liable to be quashed. The samples placed in the malkhana were tempered and thus the same could not be handed over to the FSL in sealed condition and thus the whole proceedings is liable to be set aside. The defence witnesses produced by the accused appellant proved before the court that accused appellant Sanwarram was not the driver of the truck as he was not knowing driving and he was simply servant (Khalasi) and he has been falsely implicated in the case. In support of his contentions, the learned counsel for the appellant relied upon the cases reported in Noor Aga Vs. State of Punjab and anr. 2008 R.Cr.D. 592 (SC) Jitendra and anr. Vs. State of M.P. (2003-04 Cr.L.r. (SC) Supp.) 699 , Gaunter Edwin Kircher Vs. State of Goa (1993 SCC (Cr.) 803) Rohtas Vs. State of Rajasthan 2006 (1) R.Cr.D. 376 (Raj.) , Guneshgar Vs. State of Rajasthan (S.B.Cr. Appeal No. 715 of 2006 decided on Aug. 7, 2008 at Jopdhpur), State of Rajasthan Vs. Daulat Ram 1980 Cr.L.R. (SC) 84 , State of Rajasthan Vs. Gurmait Singh 2005 R.Cr.D. (SC) 554) , Bhanwar lal Vs. State (S.B.Cr. Appeal No. 481 of 2001 decided on Oct. 17, 2005 at Jodhpur), Kailash Chandra Vs. State of Rajasthan (S.B.Criminal Appeal No. 921 of 2003 decided on July 24, 2008 at Jodhpur) and State of Rajasthan Vs. Gurmail Singh 2005 (3) SRJ 422).