VIRENDER SINGH,J - (1.) BOTH the appellants are stated to be in custody since the date of their arrest. Keeping in view their long period of detention, which includes their detention period as undertrial prisoners, the instant appeal has been set down for final hearing.
(2.) DYAL Singh son of Gurdas Singh and Saudagar Lal son of Gurdev Lal, the appellants-herein (hereinafter to be called the 'accused') were booked in case FIR No. 71 dated 29.5.1999, under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (for short to be referred to as the 'Act'), registered at police station Phillaur, District Jalandhar. Vide impugned judgment of learned Judge, Special Court, Jalandhar they stand convicted for the said charge and have been sentenced to undergo RI for ten years and to pay a fine of Rs. one lac each, in default of payment thereof to further undergo RI for 12 months each. Briefly, the case of the prosecution is that on 29.5.1999 at about 5.20 p.m. SI Sarabjit Rai, the then SHO, police station Phillaur (PW-5) along with other police officials was present at Adda Lasara in connection with patrol duty when he received a secret information to the effect that Jaswinder Singh @ Dulla was coming in a Maruti van without registration number with a driver towards Nawanshahar and his son Sital Singh with a Canter No. PB-08-D-8247 loaded with poppy husk were coming from Ludhiana side. The secret information further revealed that Jaswinder Singh @ Dulla was being followed by the said Canter, which was being driven by Sital Singh, who was accompanied by the present two appellants. As per the information, the poppy husk was to be supplied in the area of Nawanshahar and if Naka is held, the same could be recovered. Believing the secret information to be reliable, SI Sarabjit Rai sent ruqqa (Exhibit PG) to the police station on the basis of which formal FIR (Exhibit PG/1) was recorded. Toshi, a witness from the public was joined in the raiding party. Thereafter a naka was laid at Bus Stand, Kwari. Opinderjit Singh, the then DSP, Sub-Division Phillaur was requested to reach the spot. Meanwhile a van of white colour reached the spot in which Jaswinder Singh @ Dulla was sitting by the side of driver. They were signalled to stop. However, they managed to flee away. Canter No. PB-9-8247 came there, which was being driven by Sital Singh and both the appellants were found sitting in the said Canter. Sital Singh fled away from the spot. As per the case of the prosecution, he was known to Sarabjit Rai SI earlier. Both the accused were apprehended at the spot. Certain police officials tried to chase Sital Singh but he could not be apprehended. Both the accused were apprised of their right of being searched before a gazetted officer or a Magistrate as envisaged under Section 50 of the Act. In this regard two separate memos. (Exhibits PH and PI) were prepared, which were signed by the police officials and the independent witness. Both the accused opted to be searched in the presence of some Gazetted Officer. On his arrival at the spot, Opinderjit Singh DSP gave a fresh option to both the accused, who reposed confidence in the former and in this regard consent memos. (Exhibits PD and PE) were prepared. Thereafter the search was conducted by removing the Tarpal of the Canter. It was found loaded with ten bags of gram flakes and one hundred bags containing poppy husk. Out of each bag of poppy husk, two samples each of 250 grams were separated. Each of the remaining bags on weighment turned out to be 34 kgs - 500 grams. The samples and the bags were sealed with the seals bearing inscriptions 'SR' (for Sarabjit Rai) and 'OJS' (for Opinderjit Singh). Separate sample impressions were also prepared. The samples, case property along with the registration certificate and the permits were taken into possession vide recovery memo. Exhibit PF, attested by the witnesses and the DSP. The seal of SI after use was handed over to ASI Inderjit Singh whereas the DSP retained his own seal with him. The rough site plan (Exhibit PJ) was prepared at the spot. The statements of certain witnesses were recorded. Thereafter the samples and the case property were deposited with Sikander Singh (PW-2), the Moharrir Head Constable. On 30.5.1999 the samples and the case property were produced by ASI Inderjit Singh (PW-6) before the Illaqa Magistrate and thereafter the same were redeposited with the MHC. On completion of the process of investigation, both the accused were challaned. They were charged under Section 15 of the Act.
(3.) TO substantiate the charge, the prosecution has examined the following witnesses : PW-1 Balraj Singh Constable had tendered his affidavit (Exhibit PA). PW-2 HC Sikander Singh tendered his affidavit (Exhibit PB) and PW-3 Head Constable Raj Kumar tendered his duly sworn in affidavit (Exhibit C) by way of evidence. PW-4 Opinderjit Singh the then DSP, Phillaur, in whose presence poppy husk was allegedly recovered from the Canter. PW-6 Sarabjit Rai, SI was the Investigating Officer. PW-6 Inderjit Singh SI was another witness to recovery. PW-7 Sham Lal Clerk from the office of DTO, Jalandhar had brought the summoned record of vehicle No. PB-08-D-8247, which in fact was a scooter make Bajaj Chetak in the name of one Karnail Singh son of Chanan Singh, resident of Village Kalra, District Jalandhar. Toshi, the alleged independent witness was given up by the prosecution as having been won over. The report of the Chemical Examiner was also tendered into evidence.;