SUNIL KUMAR GARG - (1.) This is an appeal by the accused appellant against the judgment dated 10-7-2000 and order of sentence dated 13-7-2000 passed by the learned Special Judge, NDPS Cases, Jodhpur in Sessions Case No. 38/98 by which he convicted the accused appellant for the offence under S. 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') and sentenced him to undergo ten years' Rigorous Imprisonment and to pay a fine of Rs. one lac, in default of payment of fine, to further undergo RI for two and half years.
(2.) The facts giving rise to this appeal, in short, are as follows :- On 7-6-1998 at about 6-15 p.m., P.W. 8 Mohanlal, SHO, Police Station Kotwali, Pali City registered the FIR No. 196/98 (Ex. P/12) stating inter-alia that on 7-6-1998 at about 2-05 p.m, he received a secret information from Mukhbir to the effect that in Ashapura Tea Stall, which is situated on the main mandiya road, Pali, a boy aged about 20-22 years of fair colour deals in the business of purchasing and selling of illegal contraband opium. He reduced the said information into writing in Ex. P/9 to make the compliance of S. 42(1) of the NDPS Act and, thereafter, he along with other police officials, namely, PW 2 Man Singh, SI, PW. 1 Nijukhan, ASI and Om Karan, FC proceeded towards the spot in a Government Jeep and reached there at 2-25 p.m., where they saw one person running, but he was apprehended and on being asked, he told his name as Narayan (present accused-appellant). Thereafter, PW. 8 Mohanlal through notice Ex. P/1 called two motbirs, namely, PW. 3 Talib and P.W. 4 Abdul Hameed. It is further stated in that report that a notice (Ex. P/2) under S. 50 of the NDPS Act was also given by PW. 8 Mohanlal to the accused appellant and upon this, he gave consent that his search could be made by PW. 8 Mohanlal and the fard of consent is Ex. P/3. Thereafter, the accused appellant was searched and on search, a bag, which was put by the accused appellant on his right shoulder, was recovered and on opening the said bag, plastic packets containing black substance were found and on being tasted, it was found to be contraband opium. Thereafter, it was weighed and its weight was found to be 1kg. 250 grms., out of which, two samples of 30 grms. each were taken and they were sealed on the spot and marked as S-1 and S-2 and the remaining opium i.e. 1kg. 190 grms. was also sealed on the spot and marked as "A". The fard of search and seizure was prepared by PW. 8 Mohanlal and the same is Ex. P/4. Since the accused appellant did not possess any valid license for keeping the opium, therefore, he has committed offence under S. 8/18 of the NDPS Act. The accused appellant was arrested through Ex. P/10. Thereafter, the articles recovered from the accused appellant were handed over by PW. 8 Mohanlal to PW. 5 Punam Singh, who deposited the same in the Malkhana and made entries in the Malkhana Register and the copy of Malkhana Register is Ex. P/6. Thereafter, vide letter dated 8-6-1998 (Ex. P/14), one sample S-1 was sent to SP Office, Pali for sending it to FSL, Jaipur for chemical analysis and from SP Office, Pali, the sample S-1 was sent to FSL, Jaipur along with forwarding letter Ex. P/15 through PW. 10 Dilip Singh. The receipt of depositing the sample in FSL, Jaipur is Ex. P/8 and the report of FSL is Ex. P/17. From the FSL report Ex. P/17, it appears that sample S-1 gave positive tests for the presence of chief constituents of coagulated juice of opium poppy having 5.89% (five point eighty-nine percent) morphine. After usual investigation, the police submitted challan against the accused appellant for the offence under S. 8/18 of the NDPS Act. On 27-10-1998, the learned Special Judge, NDPS Cases, Jodhpur framed charge against the accused appellant for the offence under S. 8/18 of the NDPS Act. The charge was read over and explained to the accused appellant. The appellant denied the charge and claimed trial. During the course of trial, the prosecution examined as many as ten witnesses and got exhibited several documents. Thereafter, statement of the accused appellant under S. 313, Cr. P.C. was recorded. No evidence in defence was led by the accused appellant. After conclusion of the trial, the learned Special Judge, NDPS Cases, Jodhpur through his judgment dated 10-7-2000 and order of sentence dated 13-7-2000 convicted and sentenced the accused appellant in the manner as stated above holding inter-alia that the prosecution has proved its case beyond reasonable doubt against the accused appellant for the offence under S. 8/18 of the NDPS Act. Aggrieved from the said judgment dated 10-7-2000 and order of sentence dated 13-7-2000, passed by the learned Special Judge, NDPS Cases, Jodhpur, the present appeal has been filed by the accused appAellant.
(3.) In this appeal, the learned counsel for the accused appellant has made the following submissions :- 1. That PW. 8 Mohanlal, Seizure Officer has stated in his statement that recovery was made from the bag, which was found with the accused appellant on his personal search, but this version of PW. 8 Mohanlal is not supported by the independent motbir witnesses, namely, PW. 3 Talib and PW. 4 Abdul Hameed as these two motbir witnesses have admitted in their cross-examination that opium which was recovered, was found in an iron box. Thus, there is material contradictions about the alleged recovery and the prosecution case should be rejected on this count alone. 2. That reliance be placed on the statements of motbir witnesses, namely, PW. 3 Talib and PW. 4 Abdul Hameed, as they have not been declared hostile and there is no reason to disbelieve their testimony and the learned Special Judge has committed serious illegality in not accepting the statements of these two motbir witnesses. 3. That no compliance of S. 42(2) of the NDPS Act has been made in this case, as there is no evidence to show that secret information, which was received by PW. 8 Mohanlal from Mukhbir, has been sent to the superior officer and this requirement is mandatory and non-compliance of this mandatory requirement vitiates the entire trial. 4. That compliance of mandatory provisions of S. 50 of the NDPS Act has also not been made in the present case therefore, the whole trial stands vitiated and the accused appellant is entitled to acquittal on this ground alone. 5. That PW. 9 Shokat Hussain, who was posted in SP Office, Pali has stated in his statement that on 8-6-1998, he received the sample from Dilip Singh, PW. 10 and only one seal was affixed on it and no other seal was affixed, whereas PW. 8 Mohanlal states that articles were sealed by two seals and furthermore, it has come in evidence that on the spot, no fard of specimen seal was prepared. Thus, the prosecution has failed to establish that samples were kept properly sealed and intact and were sent to FSL in same sealed condition as were sealed at the time of seizure.;