- (1.) THIS is a Jail Appeal directed against judgment and order dated 17-09-1996 passed in Special Criminal Trial No. 11 of 1996 by learned Second Additional Sessions Judge, Haridwar, whereby ap pellant Om Prakash is convicted under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to 20 years' rigorous impris onment and also to fine of Rs. 2, 00, 000/- (Rupees Two Lakhs only), in default of payment of which, he is directed to undergo further three years' rigorous imprisonment.
(2.) PROSECUTION story, in brief, is that on 20-10-1995 at about 6:10 p. m. , the Station Officer Ram Chet Singh (P. W. 1) of Police Station GRP Laksar, along with Sub-Inspector Madan Pal Singh and other members of the force, was patrolling the Railway Station of Laksar. At about 7:30 p. m. when they reached near a bench, the appellant, who was sitting in the said bench, started mov ing from there. On getting suspicious about his activities, the police party chased and intercepted him. They enquired his name and address. Appellant disclosed his name as Om Prakash, S/o Sumer Chand, R/o Salia Jung Bahadur, P. S. Pasgawa, District Lakhimpur Khiri. On being taken search of his person, the police party found that the appellant was in posses sion of 10 tablets of Oxazepam, a packet of tablets of USP Serepax 30, a powder of rose colour rapped in a white paper and two packets of Bakeman's Cream Crunch Biscuits. In one of the Biscuits' packet word "orange" was mentioned and in another "butter". On being interrogated about the aforesaid articles, the appellant told the police party that he uses the tablets and the powder by mixing the same with tea and biscuits and administers to the pas sengers, and on their getting unconscious, robs them of their belongings. He further told the police men that in the packets of the biscuits, leaving first and last biscuits, the other biscuits con tained powder of the tablets. The ap pellant also disclosed, on further que ries, that the passengers, who do not take tea or biscuit, are given other eatable items after mixing the powder and the tablets. The police party, at the time of his search, also gave him opportu nity, if he wants that the search be taken before some gazetted officer, but the appellant told them that since he had already been caught, as such, he did not express desire of being searched before any Gazetted Officer and say anything except that he be forgiven. The police party took into their posses sion the aforesaid recovered articles from the appellant and prepared Recov ery Memo (Ex. Ka. 1), which was signed by not only PW1 Ram Chet Singh, but also by the other members of the po lice party namely Madan Pal Singh, Sub-Inspector; Constable Mahesh Giri and Constable Shiv Singh. A copy of the Recovery Memo was given to the accused appellant and on receiving the same, he made his signatures at the end of the Recovery Memo. The police party took the accused appellant along with recovered articles to the Police Sta tion and got registered Crime No. 109 of 1995 under Section 8/21/22 of the Narcotic Drugs and Psychotropic Sub stances Act, 1985 against him. An en try No. 36 in the General Diary was also recorded at 9:15 p. m. regarding the same and the accused appellant was kept in the lock-up and the recov ered articles were deposited in the Mora/ Khana. Pw3 T. R. Bharti, Chawki In-charge of Police Station GRP Laksar was given the investigation and after his transfer, Sub-Inspector Raj Pal Singh (Pw4) concluded the investigation. The Investigating Officer got sent through the Court the recovered articles for chemical examination to the Forensic Laboratory, Agra, from where a report (Ext. Ka 6) was received. According to the said report, it was found that Articles Nos. 1 to 3 were found containing Oxazepam. Article No. 4 (Biscuit) was found not containing any psychotropic substance. After completing the inves tigation, the Investigating Officer sub mitted charge sheet (Ext. Ka. 5) before the Court. After giving necessary cop ies to the accused and hearing the par ties on the charge, the learned Second Additional Sessions Judge, Haridwar, framed charge relating to offence pun ishable under Section 8/21/22 of the Narcotic Drugs and Psychotropic Sub stances Act, 1985 against the accused appellant Om Prakash to which he pleaded not guilty and clamied to be tried. On behalf of the prosecution, PW1 Ram Chet Singh, Station Officer; PW2 Constable Rajeer Singh; PW3 Sub-Inspector T. R. Bharti and PW4 Sub-Inspector Raj Pal Singh were ex amined. Prosecution evidence was put to the accused appellant under Section 313 of the Code of Criminal Procedure, 1973. The accused appellant was also given opportunity to adduce the evi dence in defence. After hearing the prosecution and the defence, learned Trial Court convicted accused Om Prakash under Secton 22 of the Nar cotic Drugs and Psychotropic Sub stances Act, 1985 and sentenced him to 20 years' rigorous imprisonment and also to fine of Rs. 2, 00, 000/- (Rupees Two Lakhs only ). In default of payment of fine, it was directed that the accused shall undergo further three years' rigor ous imprisonment. Aggrieved by the same, the convict has preferred this appeal from Jail, where he is serving out the sentence.
(3.) MR. S. P. S. Panwar, Senior Advo cate was appointed as Amicus Curiae to assist the Court on behalf of the ap pellant. We heard learned Amicus Cu riae and also the learned Government Advocate and perused the record. Pw1 Ram Chet Singh, Station Officer, GRP Laksar stated on oath be fore the Trial Court that on 22-10- 1995 since 6:10 p. m. he, along with Sub-In spector Madan Pal Singh, Constable Mahesh Giri and Constable Shiv Singh, was patrolling the Platform No. 1 of Laksar Railway Station. He further states that report as to the patrolling was made at Serial No. 31 in the Gen eral Diary. While patrolling, when they reached near a bench, they saw a per son sitting there who, on being noticed by the police, started moving from there. On this, the police party became suspicious about his activities and chased him. At about 7:30 p. m. , they caught him and enquired about his name and address. Pw1 Ram Chet Singh, Station Officer further states that the person caught disclosed his name as Om Prakash, S/o Sumer Chand, R/ o Salia Jung Bahadur, P. S. Pasgawa, District Lakhimpur Khiri. This witness has made it clear that the police party made efforts to take the public wit-nesses before taking search of the ac cused, but the passengers told that they had to undertake the journey, as such, they did not agree to be the witness of the search. On this, the police party took the search of the accused and found that the accused was in posses sion of 10 tables of Oxazepam, one packet of tablets of USP Serepax 30, some powder rapped in a paper and two packets of the Biscuits of make 'bakeman's Cream Crunch', in one of which word "orange" was mentioned and in another the word "butter". Pw1 Ram Chet Singh further states that on interrogation, accused Om Prakash told them that he uses these Biscuits and ta bles to feed the passengers and after they get unconscious, he commits theft of the belongings of the passengers. The witness further stated that the arti cles were seized and Recovery Memo (Ex. Ka. 1) was prepared at the spot. This eye-witnesses also proved the re covered articles tablets of Oxazepam (Ex. 2), Bakeman's Cream Crunch Bis cuits (Ex. 3/1, 3/2 and 3/3), it's rapper (Ex. 3/4), rosy powder (Ex. 4), paper on which it was rapped (Ex. 4/1 ). Other Biscuits were also marked on his evi dence as Ex. 5/1 to 5/8 and the broken Biscuits were marked as Ex. 6/1 to 6/ 6. Their rapper was marked as Ex. 7.;