NARESH KUMAR SANGHI,J. - (1.) THE present appeal has been filed challenging the judgment of conviction dated 07.10.2005 whereby the appellant was held guilty for the offence punishable under Section 15 of the Narcotics Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as "the NDPS Act") for having in his conscious possession 175 kilograms of poppy straw and the order of sentence dated 08.10.2005 passed by learned Additional Sessions Judge, Sirsa, whereby he was awarded the rigorous imprisonment for a period of ten years and to pay fine of Rs.1,00,000.00; in default of payment of fine, to further undergo imprisonment for a period of two years.
(2.) BRIEF facts of the case are that on 28.07.2003 at about 2.00 P.M., ASI Ram Kumar (PW5) along with Head Constable Siri Niwas was present on the T point of bus stop of Sukhera Khera, where HC Sadhu Singh (PW4) and Constable Ashok Kumar, who were available there in a Government jeep driven by Constable Zile Singh, met them and they were also joined in the police party. Thereafter the police party started checking of the vehicles. In the meantime, a Maruti car of white colour wherein two persons were sitting on the front seats, came from the side of village Sangaria, which was signaled to stop by ASI Ram Kumar. However, the car was stopped at a little distance and immediately, thereafter, one person alighted from the car and started running away. The police personnel tried to apprehend him but failed. However, he was identified to be Seera son of Boota Singh, Caste Jat Sikh, resident of Desu Jodha, as he was previously known to HC Sadhu Singh (PW4). The driver of car was nabbed at the spot by the police party and he disclosed his name to be Parmod Kumar son of Hans Raj, resident of Mandi Dabwali. On search of the car, five plastic bags were found lying in the middle and rear portion of the car. Suspecting the presence of some narcotic in the bags, notice under Section 50 of the NDPS Act was served upon to the appellant to know his willingness to be searched in the presence of a Gazetted Officer or a Magistrate, but the appellant expressed his full confidence in the Investigating Officer. Thereafter, all the five plastic bag were brought down from the car and the contents thereof were checked which were found to be of poppy husk. Two samples weighing 100 grams were taken from each plastic bags. On weighment, each plastic bag was found to contain 34 kilograms and 800 grams of the poppy husk. The mouth of all the plastic bags were tied. The bags and the samples were smeared with the seal bearing monogram 'RK' and taken into police possession vide separate memos which were attested by the witnesses. The car was also taken into police possession. The seal after use, and retaining the sample seal, was handed over to HC Siri Niwas. A memo was prepared at the spot and sent to the police station for registration of the case, on the basis of which, FIR No. 141 dated 28.07.2003, under Section 15 of the NDPS Act was registered at Police Station Sadar, Dabwali. The investigation was conducted. During the course of investigation, Seera alias Jagsir, who had allegedly run away after alighting from the car was joined in the investigation. After completion of the investigation and other formalities, a report under Section 173, Cr.P.C. was submitted. Both the accused were charge-sheeted for commission of the offence punishable under Section 15 of the NDPS Act.
(3.) IN order to substantiate the charge against the accused, the prosecution examined the following witnesses :- PW1 ASI Ranjit Singh- On 28.07.2003, he was posted as ASI in Police Station Sadar, Dabwali. On receipt of memo Ex.PA from ASI Ram Kumar, he recorded the formal FIR, Ex.PA/1. PW2 HC Ram Kumar- He tendered his affidavit Ex.PB in evidence. He was performing the duty as MHC at Police Station Sadar, Dabwali. The case property was deposited with him and he on 30.07.2003, entrusted samples five in number to Constable Dalip Singh for delivering the same to the Forensic Science Laboratory, Madhuban. PW3 ASI Maan Singh- On 28.07.2003, he was posted as Station House Officer, Police Station Sadar, Dabwali. On that day, ASI Ram Kumar produced before him accused Parmod Kumar, witnesses and entire case property. He verified the facts from appellant Parmod Kumar, witnesses and, thereafter, put his own seal having monogram 'MS' on each of the sample parcels etc. He directed ASI Ram Kumar to deposit the case property with the MHC. Report Ex.PC prepared under Section 57 of the NDPS Act was endorsed and, thereafter, ordered to be sent to Higher Police Officers. He identified contraband bags Exs.P1 to P-5 containing the residue contraband in the court. He also identified car No. DL-ICB-5417 parked outside the court on that day. PW4 HC Sadhu Ram- On 28.07.2003, he along with some other police personnel was present at the turning near bus stand of village Sukhera Khera. He deposed about the stopping of the Maruti car, recovery of the contraband from the said car, running away of Jagsir Singh after alighting from the car and arrest of appellant Parmod Kumar, in addition to the other formalities observed at the spot. PW5 ASI Ram Kumar- He deposed about the investigation conducted by him. PW6 Constable Dalip Singh- He tendered in evidence affidavit Ex.PF wherein he, inter-alia, deposed that on 28.07.2003 he was posted on general duty at Police Station Sadar, Dabwali. On 30.07.2003, MHC Ram Kumar handed over to him the five samples of the contraband which were smeared with the seals 'RK'-'MS' for depositing the same with the Forensic Science Laboratory, Madhuban. He deposited the samples on 31.07.2003 and after return to police station, deposited the receipt with MHC. ;