SUNIL KUMAR GARG - (1.) This appeal has been preferred by the accused appellant against the judgment and order dated 7-8-1997 passed by the learned special Judge. NDPS Cases, Bhilwara in Sessions Case No. (32/93)/(28/ 94)/92/97. by which he acquitted other co-accused Subhash of the charge for the offence under section 8/18 of the Narcotic Drugs and Psychotropic Substances Act. 1985 (hereinafter referred to as the NDPS Act.), but convicted the present accused appellant for the said offence and sentenced him to undergo ten years' rigorous imprisonment and to pay fine of Rs.one lac, in default of payment of fine, to further undergo SI for one year.
(2.) It arises in the following circumstances:- On 17-1-1991, PW 3 Sukhpal Singh, Inspector, Narcotics Department, Bhilwara gave a written report to PW 4 Ravindra Nath., who was District Opium Officer, Bhilwara stating inter alia that on 16.1 1991 he along with Raiding party consisting of PW 1 Bodusingh, PW 2 Mohd. Rehan and PW 7 Mohanchand proceeded in a Government Jeep No. RJH 4183 for the purpose of checking the vehicles in order to prevent smuggling of contraband articles and reached at Chungi Naka No. 2 on Bhilwara-Chittorgarh road and at about 11.30 AM. Madhya Pradesh Roadways Bus bearing No. CIF 212. Which was coming from Neemuch to Bhilwara, was stopped and thereafter, PW 3 Sukhpal Singh and his party entered the Bus and two persons, who were sitting on seats No. 17'and 18, were found in suspicious condition and on being asked, one told his name as Hariram Jar (Present accused appellant) and another Subhash Jar (acquitted accused) and both were asked by PW 3 Sukhpal under the provisions of Sec. 50 of the NDPS Act whether they wanted to be searched before the Magistrate or Gazetted Officer and upon this, they gave their consent that they may be searched by PW 3 Sukhpal and, thereafter, they were searched by PW 3 Sukhpal Singh and on search, a cloth bag was recovered from the present accused appellant, which was lying on his lap and on opening it, a polythene bag containing contraband opium was recovered and tickets were also recovered from them and they told at that time that it was the joint property of both of them. It was weighed on the spot and its weight was found to be 2 kg. 500 grins., out of which, two samples of 24 gms each were taken and they were sealed on the spot and the remaining contraband opium was also sealed separately on the spot. The accused appellant was arrested through Ex. P/2 and the other co-accused Subhash was arrested through Ex. P/3. The fard of search and seizure Ex. P/1 was prepared on the spot by PW 3 Sukhpal Singh. The lard of specimen seal is Ex. P/6. The copy of Malkhana Register is Ex. P/12. Thereafter, vide letter Ex. P/8, the Sample was sent to the Government Opium and Alkaloid works, Neemuch for chemical analysis through PW 7 Mohanchand and the report of the Assistant Chemical Examiner. Government Opium and Alkaloid Works, Neemuch is Ex. P/10, where it has been stated as under: "The sample is found by qualitative and quantitative analysis to be opium within the meaning of Section 2 (xv} of NDPS Act 1985 (61 of 1985)." After usual investigation, challan was filed against the present accused appellant Hari Ram and other co-accused Subhash in the Court. On 21-9-1993, the learned Sessions Judge, Bhilwara framed charges for the offence under section 8/18 of the NDPS Act against the present accused appellant and other co accused Subhash. The charges were read over and explained to both accused persons', Who pleaded not guilty and claimed trial. During trial, the prosecution in support of its case examined as many as seven witnesses and got exhibited some documents. Thereafter, statements of the accused per-s6ns under section 313 Cr. P. C. were recorded. In defence, no evidence was produced.However, some documents were got exhibited by the accused in defence. After conclusion of trial, the learned Special Judge, NDPS Cases, Bhilwara through his judgment and order dated 7-8-1997 acquitted the other co-accused Subhash of the charge framed against him, but convicted the present accused appellant of the charge for the offence under section 8/18 of the NDPS Act and sentenced him in the manners indicated above holding inter alia: 1. That samples and seized contraband opium from the accused appellant remained in good sealed Conditions and proper custody from the date of seizure till they reached FSL. 2. That it is an admitted position the present case that sample as well as remaining opium seized from the person of the accused appellant were not produced in the Court during trial and if they have not been produced in the Court, it would not affect the case of the prosecution. 3.That compliance of Section 50 of the NDPS Act has been made by the prosecution in the present case. 4.That it cannot be said that in the present case, other co-accused Subhash was, in any manner, in possession of the contraband opium and thus, he was acquitted. Aggrieved from the said judgment and order dated 7-8-1997 passed by the learned Special Judge, NDPS Cases, Bhilwara, this appeal has been filed by the accused appellant.
(3.) In this appeal, the following submissions have been made by the learned counsel for the accused appellant: 1. That statements of PW 1 Bodu Singh, PW 2 Mohd. Rehan, PW 7 Mohanchand and PW 3 Sukhpal Singh were got contradicted with their police statements in which it was not mentioned that Compliance of Section 50 of the NDPS Act was made and furthermore, since there is no separate memo for compliance of Section 50 of the NDPS Act, therefore, the learned Special Judge has erred in holding that compliance of Section 50 of the NDPS Act has been made on the contrary, it should be held that to compliance of Section 50 of the NDPS Act has been made in the present case. 2. That PW 7 Mohandchand, who took the sample to Government Opium and Alkaloid works, Neemuch, has stated that he received the sample for chemical analysis from Dharamveer Katwalia, who was not examined and the statement of PW 7 Mohanchand gets contradicted with the statement of PW 4 Ravindra Nath, who states that he gave the sample to PW 7 Mohanchand for the purpose of sending it to Neemuch for chemical analysis Thus, there is material contradiction on the point under whom the samples and seized articles remained in custody 3. That so-called articles and sample recovered from the accused appellant were not produced in the Court and this fact itself is sufficient to acquit the accused appellant. 4.That both Motbir witnesses, namely, PW 5 Keshu and PW 6 Budhiprakash have been declared hostile and normally mere declaring them hostile does not affect the case of the prosecution, but in the present case, looking to all the facts and circumstances, this fact also leads to only one conclusion that prosecution has not been able to prove its case beyond all reasonable doubts. Hence, it is prayed that this appeal be allowed and the accused appellant be acquitted of the charge framed against him. ;