GABDU LAL AND ORS. Vs. STATE

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) This appeal has been preferred by the accused-appellants against the judgment delivered by learned Special Judge, NDPS Cases, Chhabra, Distt.Baran dated 28.6.2007 whereby accused-appellants Jailal and Dhanraj were convicted under Sec.8/21 and in the alternative under Sec.8/17 of the NDPS Act and sentenced to 10 years' rigorous imprisonment and fine of Rs.1,00,000/- in default of payment of fine to further undergo one year rigorous imprisonment while accused-appellant Gabdulal was convicted under Sec.8/29 of the NDPS Act and sentenced to 10 years' rigorous imprisonment and fine of Rs.1,00,000/- in default of payment of fine to further undergo one year rigorous imprisonment.

(3.) Briefly stated, the prosecution case is that on 12.2.2004, Jodha Ram, SHO, P.S. Kawai along with police party was on petrolling duty and when he was checking the vehicles at Atru Road, Nimoda Phatak, at about 10.30 AM, two persons were coming on motor cycle. They were stopped and on being enquiry, they told their names as Dhanraj and Jailal. They were asked as to why they tried to run away, they could not reply satisfactorily. On suspicion of there being some contraband article with them, independent witnesses were called but no such witness could be produced and hence Arun Singh and Jakir Hussain, who were member of police party, were nominated as motbirs. The appellants were informed about their right to be searched before a Magistrate or a Gazetted Officer and hence they were given such an option. But the appellants expressed their willingness to be searched before the SHO himself. On being searched, Dhanraj was found with small packet under his pent near waist having powder which was found to be smack. Thereafter, accused Jailal was searched. He was found with small pocket in right pocket of his pent which was also found to have contained smack. The contraband recovered was weighed which was found to be 300.00 gms in each packet recovered from each accused. Samples out of the seized contraband were taken on the spot and accused persons were arrested. On being inquired, two accused informed that they had bought this contraband from Gabdulal and that the motor cycle also belonged to him. Hence motor cycle was also seized. After preparing necessary memo, case was registered at the police station and the investigation proceeded.