JAGNNATH Vs. STATE

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) This appeal has been preferred by the accused-appellant Jagannath S/o Jamna Lal against the judgment delivered by learned Special Judge, NDPS Cases, Chhabra, Distt. Baran dated 17.5.2007 whereby he was convicted under Sec.8/18 of the NDPS Act and sentenced to 08 years' rigorous imprisonment and fine of Rs. 80,000.00 in default of payment of fine to further undergo eight months rigorous imprisonment.

(3.) Briefly stated, the prosecution case is that on 21.6.05, SHO of Police Station- Chhepa Barod was on petrolling along with police party reached at Kawai road, near petrol pump at about 12.45 PM in the day, then the police party saw a person standing near bridge, was having a plastic bag in his hand and on seeing the police, he run away in the field but police party caught him and asked for his name, and address. His reply was not satisfactory and hence on suspicion of having contraband article, he was searched in the presence of two motbir witnesses i.e. Channu Pathan-Pw8 and Anil Kumar-PW10, after giving him an option to get himself searched in the presence of the Magistrate or Gazetted Officer, and accused-appellant expressed that he would like to be searched in presence of SHO Jodha Ram. He then was searched and from his bag, blackish material was found and on smelling and testing, it was found to be opium. The seized article was weighed and it was found to be 2.5 kg. Two samples were taken from the seized article for examination. Accused-appellant was arrested and along with seized article, he was taken to P.S. Chipa Badod where case under Sec.8/18 NDPS Act was registered and investigation proceeded. During the seizure proceedings, recovery memo Ex.P7 was prepared. Two motbir witnesses were called and were appointed as motbirs of the search vide Ex.P-9. Memo Ex.P-10 pertaining to option given to the accused was also prepared. Accused was arrested vide arrest memo Ex.P-11. Vide Ex.P-12, sample seal was prepared and on reaching to the Police Station, FIR Ex.P-14 was lodged. The samples collected at the time of seizure were kept in Malkhana vide Ex.P-5 and site map was prepared vide Ex.P-4. Sample was sent to FSL through constable Vijendra Singh-PW-2 who deposited the same vide receipt Ex.P2 and after examination, report of FSL Ex.P-3 was received and sample was found to be containing 2.45% of morphin.