- (1.) The abovenamed accused-appellant has preferred this appeal against the judgment and order dated 11-9-1996 passed by the learned Special Judge, NDPS cases, Sri Ganganagar in Sessions case No. 9/93 by which he convicted the accused-appellant for the offence under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') and sentenced to undergo ten years RI and to pay a fine of Rs. 1 lac in default of payment of fine, to further undergo one year RI.
(2.) The facts giving rise to this appeal, in short, are as follows :- P.W. 8 Jeevan Ram, SHO Police Station Sadulsahar District Sri Ganganagar registered the FIR Ex. P/13 stating inter-alia that on 23-1-1993 at about 3.00 PM he along with police officials including P.W. 1 Ramjilal and P.W. 5 Pradusingh proceeded in a Government jeep and reached Sadulsahar at about 4.00 pm. where he received a secret information to the effect that one person near the Water Works was carrying katta containing contraband article and that information was reduced in writing by him in Ex.P/11 and, thereafter, he took two motbirs P.W. 2 Harnek Singh and P.W. 3 Malaram and reached near the Water Works and as per information, he found a person sitting there and on being asked, he told his name as Hardeep Singh (accused appellant) and at that time he was having a katta of fertilizer and on being asked, he told that it contained poppy husk. Thereafter, he was informed through notice Ex.P/12 whether he wanted to be searched before a Magistrate or Gazetted Officer and he gave his consent on it that search be made by P.W. 8 Jeevan Ram himself. Thereafter, he made search of the accused appellant in presence of motbir witnesses and on search, a plastic katta was recovered and on opening, it was found that it contained poppy husk and on weighing, its weight was found to be 6 kg. and out of that, sample of 500 gms. was taken and sealed on the spot and the remaining poppy husk was also sealed on the spot. The fard of search and seizure Ex. P/1 was prepared on the spot. Thereafter, P. W. 8 Jeevan Ram handed over the contraband articles recovered from the accused appellant to P. W. 4 Kana Ram, who deposited the same in the Malkhana and copy of Malkhana Register is Ex. P/9. Thereafter, sample was sent to FSL for chemical analysis by P. W. 4 Kanaram through P. W. 6 Kedarnath, who after taking forwarding letter Ex. P/15 from SP Office, Sri Ganganagar, deposited the same in FSL, Jaipur and the report of FSL is Ex.P/16, where it has been stated that the sample contained in the packet marked 'A' gave positive tests for the presence of chief constituents of opium hence the sample is of dried crushed capsules of poppy. After usual investigation, the police submitted challan against the accused appellant in the Court of Magistrate and from where the case was committed to the Court of Session and thereafter, the case was transferred to the learned Special Judge, NDPS cases, Sri Ganganagar. On 6-10-1993, the learned Special Judge, NDPS cases,Sri Ganganagar framed charge for the offence under Section 8/15 of the NDPS Act against the accused appellant. The charge was read over and explained to the accused appellant, who pleaded not guilty and claimed trial. During trial, the prosecution in support of its case examined eight witnesses and got exhibited several documents. Thereafter, statement of the accused appellant under Section 313, Cr.P.C. was recorded. No evidence in defence was led by the accused appellant. However, three documents were got exhibited in defence. After conclusion of trial, the learned Special Judge, NDPS cases, Sri Ganganagar through his judgment and order dated 11-9-1996 convicted accused appellant for the offence under Section 8/15 NDPS Act and sentenced in the manner as stated above holding inter alia :- 1. That in the present case, provisions of Section 42 of the NDPS Act are not applicable and on the contrary, provisions of Section 43 of the NDPS Act are applicable as the search has been effected in the public place. 2. That though both motbir witnesses, namely, P. W. 2 Harnek Singh and P. W. 3 Malaram have been declared hostile, but it does not affect the prosecution case as other official witnesses supported the prosecution case.
(3.) That there is no room to hold that seal of sample in the present case has been tampered with in any manner and from the evidence on record, it has been proved by the prosecution that the seal of the sample remained intact from the date of sealing till it reached in the FSL.;