Jitendra Chauhan, J. - (1.) THE present appeal is directed against the judgment of conviction dated 12.05.2004 and order of sentence dated 13.05.2004, passed by the Court of learned Special Judge, Ferozepur, whereby, the accused/appellant has been convicted for the commission of crime punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as 'the Act') and sentenced him to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 2,000/ - or in default of payment thereof, to further undergo imprisonment for three months.
(2.) BRIEF facts of the case in hand, as recorded in the opening para of the impugned judgment, are reproduced as under: - "2. The prosecution case, in brief, is that on 09.08.1997, ASI Parminder Singh, Incharge Police Post Bahav Wala, along with other police officials was present at Bus adda Rajpura in connection with nakabandi duty when a Scooter made Vespa bearing registration No. PB -53 -1990 was seen coming from the side of Matili, which was being driven by Jagtar Singh accused and Ravi Kumar accused was sitting on the Pillion seat. ASI Parminder Singh, who is the Investigating Officer in this case, stopped the Scooter on the basis of suspicion and asked them that he suspects some intoxicating material in the Dicky of the scooter and search is to be taken and whether the accused want to give search in the presence of some Magistrate of Gazetted Officer or from Investigating Officer, on which both the accused stated in one voice that Investigating Officer would recover the article in their possession and as such tendered no objection if search is taken by the Investigating Officer. Thereupon, consent memo, Ex.P -1 was prepared to this effect. Thereafter Investigating Officer took search of the scooter and recovered opium wrapped in a glazed paper and contained in a Jhola from the dicky of the scooter on which the accused were coming. The Investigating Officer arranged weighing material and separated two samples each weighing 10 grams and prepared their parcel and remaining opium was weighed and found to be 1.980 Kgs. and its separate parcel was prepared. Thereafter, Investigating Officer sealed all the parcels with his seal bearing impression 'PS' and took the same into possession alongwith Jhola and scooter vide recovery memo, Ex.P -3, which was attested by HC Panjab Singh and sample seal Ex.P -2 was separately prepared. As the accused were found in possession of opium without any permit, therefore, Investigating Officer sent ruqa Ex.P -5 to the police station on the basis of which formal FIR Ex.P -6 was registered. Investigating Officer prepared rough site plan Ex.P -7 of the place of recovery. Currency notes of Rs. 100/ - were recovered from 'jamatalashi' of accused Jagtar Singh and currency notes of Rs. 10/ - were recovered from the 'jamatalashi' of accused Ravi Kumar and the same were taken into possession vide memo Ex.P -4. Both the accused were arrested in this case and grounds of arrest were intimated to them and memo Ex.P -8 was prepared to this effect. Investigating Officer recorded statements of the witnesses at the spot and after completion of investigation at the spot. Investigating Officer went to Police Station Sadar, Abohar and handed over the case property including sample parcels and sample seal to SHO Sandeep Kumar, who further sealed the case property and samples with his seal bearing initials 'SK' and took the same into possession vide memo Ex.P -9 which was attested by the Investigating Officer. Sample parcel of this case was sent to the Chemical Examiner, Bathinda for analysis, who vide report Ex.P -12 declared the contents of sample parcels as 'opium' and after completion of investigation challan against the accused was presented in the court of Illaqa Magistrate, who committed the case to the Court of Sessions for trial and the same was received in this Court by entrustment/transfer. On 29.01.1998, the appellant -accused was charge -sheeted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, to which they pleaded not guilty and claimed trial.
(3.) IN order to prove its case, the prosecution examined PW1 Constable Suresh Kumar, PW2 ASI Parminder Singh, PW3 Inspector Sandeep Kumar, PW4 HC Panjab Singh, PW5 Ahlmad Bansi Ram and thereafter, the learned Additional P.P. for the State closed the prosecution evidence after tendering report of chemical Examiner, Ex.P -12. During pendency of the case, accused Ravi Kumar absented from the court and his presence could not secured and he was declared proclaimed offender vide detailed order dated 24.02.2003.;