MOHD.YAMIN, J. - (1.) THIS is are vision against the judgment of learned Additional Sessions Judge No. 1. Jodhpur dated 10 -7 -1991 by which he dismissed the appeal of the petitioner and confirmed his conviction and sentence of six months rigorous imprisonment with a fine of Rs. 100/ - and in default to undergo one month's rigorous imprisonment under each count for offences under Sections 13 and 14 of the Dangerous Drugs Act, 1930 (hereinafter referred as 'the Act') passed by the Chief Judicial Magistrate, Jodhpur.
(2.) I have heard the learned counsel for the petitioner as well as learned Public Prosecutor at length and have also perused the record. Briefly stated, the petitioner and six other accused persons were put to trial before learned Chief Judicial Magistrate, Jodhpur for the said offences on the ground that on 2 -4 -1975 Station House Officer of Shergarh was carrying on anti smuggling campaign. On that date on the basis of secret information he checked truck No. RJQ -9619 coming from the side of Jaisalmer. On search it was found that Mehardeen and Kutabdeen were sitting on the roof of the cabin of truck and 137 packets of charas in four bags were under their seat. They were 137 Kg. in weight. Then the petitioner and other persons were arrested and case was registered. After investigation challan was submitted and the petitioner and others were charged for the offences under sections 13 and 14 of the Act. The petitioner denied his indictment and claimed trial. Prosecution examined eight witnesses in support of its case. The petitioner was examined under Section 313 Cr. P.C. He did not produce any witness in defence. It is further stated that it were Sitaram and Ratanlal who purchased the contraband and driver Mohan Nath and Khalasi Muknaram were transporting the same. It was Bhekedar Gopi Kishan through whom the deal was finalised. All of them were prosecuted and charged. After trial Ratanlal, Sitaram and Mukna Ram were acquitted. Mohan Nath, Mehardeen and Gopi Kishan are said to have expired during trial. It was accused petitioner Kutabdeen who was convicted and sentenced as stated above.
(3.) LEARNED counsel for the petitioner submitted that the petitioner was a passenger in the truck and that he did not know whether the drug was lying on the roof of the cabin, as such there was no conscious possession of the petitioner. He also submitted that the procedure laid down, in the Act has not been followed by the Investigating Agency and, therefore, the petitioner could not have been convicted by both the Courts below. It has also been submitted that Malkhana register in which entry was made has not been proved and it cannot be said that the sample which was sent to the laboratory reached in the same condition in which it was taken.;