GOPAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE appellant Gopal filed this Jail appeal against the judgment dated September 28, 2004 of Special Judge Narcotic Drugs and psychotropic Substances Act Cases, Chhabra in sessions Case No. 67 of 2002 convicting and sentencing the accused appellant under section 8/18 of NDPS Act for 10 years RI with fine of rs. 1,00,000 in default of payment of fine to suffer six months RI.

(2.) BRIEF facts of the case are that on November 4, 2001 on the information received from Mukhbir, a raid was conducted by Satish Kumar SHO Chhabra at village Ghatakhedi at the residence of the accused appellant that he is having 450 gms. of opium. This information was entered in the Rojnamcha register. After effecting the said recovery of opium, the Police started further investigation into the matter and seized the articles, prepared the required memos and the material documents were brought on record and exhibited Ex. P. 1 to Ex. P. 29 and as many as about 18 witnesses were brought on record and their statements were recorded. The trial court after perusal of the entire record, examining the statements of witnesses and hearing both the sides, vide its judgment dated September 28, 2004 convicted and sentenced the accused appellant as indicated above.

(3.) MR. R. S. Rathore, learned counsel appearing for the accused appellant argued that the witnesses of the reocovery Ex. P. 1, PW. 1 Radhey shyam and PW. 1 Nane Khan, were declared hostile by the trial court, and hence no conviction could have been based on the testimonies of these witnesses. The mandatory compliance of the provisions of section 42 of the NDPS Act have not been made by the investigating agency before taking the search. The information of the incident for making raid and in making recovery of the contraband was sent by the investigating agency to the higher authoriteis at a belated hour. There is no direct evidence to show that the alleged opium which is said to have been recovered from the house of the accused appellant was in the exclusive possession of the appellant. While sending the material articles of recovery were not properly sealed, nor CFCL form was deposited, which creates serious doubt in the manipulation of the recovered opium by the prosecution. No independent witnesses were made available to identify the recovered opium, the non compliance of the mandatory provisions of the NDSPS Act, the order of conviction passed by the trial court is liable to be quashed. The accused appellant was not found indulging in illegal activities under the NDPS Act on the date of raid at the time of possession, search and recovery, therefore the benefits of doubt should have been extended in favour of the accused appellant. There are material improvements and contradictions in the statements of the prosecution witnesses. The witnesses produced in the case are highly interested witnesses and as such their testimony ought not to have been believed. The sentence recorded is too harsh, which deos not conform to the constitutional validity, the same is liable to be quashed.