- (1.) AJAI Kumar Singh, J. This appeal has been preferred against the judgment and order dated 4-3-1995 passed by Sri Parduman Kumar 1st Additional Sessions Judge, Bijnor, in Special Session Trial No. 72 of 1993, State v. Sohan Singh, arising out of case crime No. 123/1992, under Section 15 Narcotic Drugs and Psychotropic Substances Act,1985 (hereinafter referred to as "act") Police Station Rehad District Bijnor, convicting the appellant under Section 15 of the Act and sentencing her to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine to undergo simple imprisonment for a further period of two years.
(2.) BRIEFLY stated the prosecution case is that on 30-10-1992 S. O. Shri Bhagwan Sharma alongwith Constable Malkhan Singh, Constable Satendra Singh and Driver Ashfaq had gone to village Madhowalla in connection with an enquiry vide G. D. No. 17 of 14. 39 hours of that date. Constables Ram Kumar Sharma and Rama Shanker Yadav were summoned through R. T. set. After making enquiry when the police party started from village Madhowalla, information was received through Informer at about 5. 00 p. m. That one person is coming from the side of village Kalluwala having a beg filled with Opium Doda and that he will go to village Dharmapur. Believing upon this information an attempt was made to procure in public witnesses but none could be available for the fear of emity with the accused. Members of the police party took search of each other in order to ensure that none of them possessed any contraband article. Leaving the Jeep with Informer members of police party hided themselves in the bushes of Bund Narayanwala and started waiting for that person. Shortly thereafter one person (Sikh) was seen coming from the side of village Narayanwala, who was having a bag. After pointing out towards that person the informer slipped away. The said person was apprehended by the police party at 5. 20 p. m. On being enquired that person disclosed his name as Sohan Singh son of Buxi Singh. He was informed by the police party that there was information that he was carrying powder of Doda opium. On being asked as to whether he would like to give his personal search before a Gazetted Officer or a Magistrate, the accused/appellant told that he has faith on the police party and that they may take the search themselves. On his personal search about 6 K. G. Powder of Opium Doda was found in different plastic bag, kept in side the black rexine bag, which he was carrying in his hand. On being asked to show the licence, the accused/appellant denied possession of any Licence. After disclosing the reason for arrest the accused/appellant was arrested. The recovered contraband was kept in the same bag, which the accused was carrying and the same was sealed after putting it in a piece of white cloth and the sample of seal was also prepared. The memo of recovery was prepared on the spot, which was read over to the witnesses and their signatures were obtained. Copy of the recovery memo as given to the accused. The place of occurrence being a lonely place no public witness could be procured. The recovered contraband and the apprehended accused were taken to the police station and on the basis of the recovery memo Chick F. I. R. was prepared and entries were made in the G. D. of the police station. The recovered contraband was sent to Scientific Laboratory Agra for analysis through constable Hamid Khan but the said constable returned back because the Chemical Examiner refused to accepted the same and directed that only sample of the recovered article be sent for analysis. Thereafter the recovered contraband was taken to the Court of C. J. M. Bijnor on 30-11-1992 and the sample of the same was taken. The sample and the remaining contraband were sealed separately and the sample was again sent to the Chemical Examiner. According to the report dated 12-8-1992 of the Chemical Examiner, the contraband was found to be crushed Doda Posht. Investigating Officer inspected the spot and prepared the site plan and after the close of investigation submitted charge- sheet under Section 15 of the Act against the accused/appellant. The accused/appellant denied the charge and pleaded not guilty and claimed to be tried. To prove its case, the prosecution examined as many as 5 witnesses. S. I. Malkhan Singh P. W. 1 is the eye-witness of the occurrence who proved the recovery of contraband from the accused/appellant. S. I. Man Singh, P. W. 2 is the Investigating Officer who has proved the site plant (Ex. Ka-2), copy of the G. D. and the charge-sheet. S. I. Bhagwan Shrma is also an eye- witness and witness of recovery, who has totally supported the prosecution version and the statement of P. W. 1. Pradeep Kumar, P. W. 4 is a formal witness who has proved the Chick F. I. R. Ex. Ka-7 and the copy of G. D. of registration of case Ex. Ka-8. Constable Hamid Khan, P. W. 5 has stated that he took the contraband to the Court of C. J. M. for permission to take it to the Scientific Laboratory for examination and when the said contraband was returned from the Laboratory he again deposited the same in the police 'malkhana' at the police station. He further stated that he again came to the Court of C. J. M. Alongwith S. I. Man Singh and took sample of the contraband before the C. J. M. and again the sample and the remaining contraband was sealed. The sample was sent for chemical examination and the remaining contraband was deposited in the police 'malkhana'. He has further stated that on 2-12-1992 he took the sample to the Scientific Laboratory Agra for chemical examination. In his statement under Section 313 Cr. P. C. The accused/appellant denied the entire prosecution version and stated that he has been falsely implicated in this case. In his defence he examined Shrimati Harjeet Kaur wife of the accused as D. W. 1, who has stated that her husband was falsely implicated in the case as he had boundary dispute with Ajit Singh, who was tout of police. D. W. 2 Har Charan Singh also corroborated D. W. Shrimati Harjeet Kaur and stated that before Sohan Singh was challaned, he was kept in illegal confinement for about 10 to 12 days at the police out post Kalluwalla.
(3.) AFTER considering the entire evidence on record and after hearing the accused the learned trial Court found the accused/appellant guilty of the offence under Section 15 of the Act and convicted and sentenced him as mentioned above. Feeling aggrieved, the present appeal has been preferred by the accused/appellant. I have heard Vikas Sharma, Advocate appointed amicus curiae to do Pairvi on behalf of the accused/appellant in this case and the learned A. G. A. and have also gone through the entire record carefully.;