Decided on December 26,2013

Laxman Dass Kamboj Appellant


Umesh Chandra Dhyani, J. - (1.) ONE S.I. Girish Kumar Kotiya lodged an FIR at police station Gadarpur, on 16.11.1999, at 4:30 PM, against the appellant and two others, which was registered as case crime No. 769/1999 under Section 8/17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). The incident allegedly took place on 16.11.1999 at 2:30 PM and the FIR was lodged on the selfsame day at 4:30 PM. The distance between the place of incident and the police station was 7 1/2 km. Hence, there appears to be no delay in lodging FIR. After investigation of the case, a charge -sheet was submitted against the accused -appellant for the offence punishable under Section 8/17 of the Act. When the trial began and prosecution opened it's case, charge against the accused was framed for the selfsame offence, to which he pleaded not guilty and claimed trial.
(2.) PW 1 S.I. Sudhir Kumar Tomar, PW2 Constable Lakmi Chand, PW3 Constable Rajesh Kumar, PW4 Constable Sohan Lal and PW5 S.I. J.S. Yadav were examined on behalf of the prosecution. Incriminating evidence was put to the accused under Section 313 Cr.P.C. in reply to which he said that he was falsely implicated in the case and the prosecution witnesses told a lie. No evidence was given in defence.
(3.) AFTER conclusion of the trial, learned Sessions Judge, District Udham Singh Nagar, vide judgment and order dated 13.05.2002, convicted the accused -appellant under Section 8/17 of the Act and sentenced him to undergo rigorous imprisonment for ten years alongwith a fine of Rs. 1 lakh. In default of payment of fine, the appellant was directed to undergo further imprisonment for 3 years. Aggrieved against the same, the present criminal appeal was preferred by the appellant. The prosecution led the evidence through PW1 S.I. Sudhir Kumar Tomar, who said, in his examination -in -chief, that on 16.11.1999, he was posted as Sub Inspector at Police Station Gadarpur. On that day, he alongwith other police personnel (including S.O. Girish Kumar Kotiya, reporter) was busy in patrolling duty. When they reached near village Sarovar Nagar, an informer informed PW1 and other police personnel that three persons were coming from village Sakonia and they were carrying opium unauthorisedly. No public witness was available there. The police took the search of each other and proceeded towards village Sakonia. When they reached near Kui -Khera, they saw three persons coming from there. When the police personnel tried to interrupt them, they did not stop. They were chased and apprehended at around 2:30 PM. One of these persons disclosed his name as Laxman Dass Kamboj (appellant). Appellant disclosed that he was carrying opium. The appellant was duly informed by S.O. Girish Kumar Kotiya regarding his right of being searched before a Gazetted Officer or a Magistrate, as required under section 50 of the Act, but he declined that offer. The appellant stated that the police personnel might take his search. In this regard, a consent letter was also obtained from him. Appellant appended his thumb -impression on the consent letter (Ex.Ka -1). When the appellant declined to be searched before a Magistrate or a Gazetted Officer, the Station Officer took his search. 4 kg of narcotic substance was found from inside a plastic bag in possession of the appellant. The case property was placed before the trial court. It was presented in a sealed condition, the seal was opened, and the case property was exhibited as material Ex.2 alongwith bag material Ex.1. Prima facie, it appeared that the narcotic substance seized from the possession of the appellant was opium. Appellant was called upon to produce the licence to keep the same, but he could not. Appellant was arrested. Representative sample of the sub -stance (15 gram) was taken out and the remaining substance was kept in a bag under a proper seal. Recovery memo (Ex.Ka -2) was prepared, which was signed, not only by the police personnel, but also acknowledged by the appellant, who put his signatures on the same. Appellant was brought to the police station and FIR was lodged. The information regarding the arrest of appellant was given to Superintendent of Police, Rampur through radiogram.;

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