MISHRI LAL Vs. STATE

JUDGEMENT

(1.) On 14.3.1996 at about 3.00 p.m. PW 10 Setharam, the then Station House Officer Police Station Beware (Distt. Ajmer), allegedly received secret information to the effect that Mishrilal-appellant was keeping opium in his possession, without having licence, at his shop situate at bus stand Kharwa, a village at about 15 Km. far from Police Station Beawar. PW 10 Setha Ram reduced the information in writing (vide Exhibit P/9), and sent his constable Surendra Singh to call-for independent witnesses from the locality as. also PW 4 Mewa Ram Tehsildar. He passed the secret information to Assistant Superintendent of Police. Beawar, the officer immediate superior to him also and after having taken PW 7 Narpat Singh, Prithvi Singh and PW 4 Meva Ram Tehsildar, as independent witnesses, with him left for the village Kharwal, Setha Ram SHO reached the shop of the appellant at about 3.35-3.40 p.m. and found the appellant there. It is alleged that the SHO gave a notice to the appellant to the effect that he (SHO) intended to search his person, as he was keeping opium without possessing licence, and also enquired of him whether he would like to be searched in. the presence of a gazetted officer. On appellant's agreeing to be searched in the presence of the gazetted officer, who the Tehsildar Mewa Ram was the SHO searched the person of the appellant and the Addl. S.P. also reached there by that time. The appellant was found keeping 1.50 gram of opium, wrapped in Polithin packet, in the pocket of his shirt. The opium was duly seized and sealed by the SHO in presence of the Tehsildar and other witnesses and the appellant was arrested. It is not in dispute that the substance, in respect of which a report from Chemical Analylist was called for from the Assistant Director Forensic Science Laboratory, Jaipur, was opium. At the trial of the appellant, the learned trial Judge found the above facts proved against the appellant and held him guilty of the offence under section 8/18 of the NDPS Act, 1985. He accordingly, convicted him, therefor, and sentenced him to suffer R.I. for 10 years and also payment of fine of Rs. 1 Lakh or in default of payment of fine to further undergo R.I. for 21/2 years vide his judgment and order dated 16.1.1997 made in Sessions Case No. 15/96. Hence this appeal by the appellant under section 374 Crimial P.C.

(2.) Mr. A.K. Gupta, the learned counsel for the appellant took me through the entire evidence obtaining on the record of the trial Court and submitted that:-

(3.) In support of his contentions Mr. Gupta relied upon certain decision of this Court as well as of the Apex Court.