MADAN, J. - (1.) THIS criminal appeal has been preferred against the judgment of the trial court by (1) Prabhulal, (2) Nandji Alias Nandlal, (3) Dhannalal, (4) Bhojraj, (5) Sheoji (6) Smt. Sugna and (7) Smt. Kalyani, each of whom has been convicted under Section 8/18 and 8/21 of the Narcotic Drugs & Psycotropic Substances Act, 1985 (for short `the NDPS Act') and sentenced to undergo ten years' RI with a fine of Rs. one lac (in default, further RI for one year ).
(2.) IT is the prosecution case that on an information received on 18. 11. 1997 as to the appellants being indulged in manufacturing smack from opium, a raiding party headed by Ashwin Kumar, SHO Police Station Chhipa Board (District Baran), consisting of other police personnel including Anar Singh (ASI), Chandra Prakash (ASI), Lal Chand (ASI), Ghasilal (HC) and constables Rameshchand (HC), Phool Chand (FC), Totaram (FC), Bhagwan Singh (FC), Brij Behari (FC), Anil Kumar (FC), had carried out a search at the house and place of Prabhulal (A1) after giving out as to their having been indulged in manufacturing smack from opium as per information of an informer, and before search when Prabhulal (A1) was called out of his house and he gave out that it was his house being owned and possessed as his residential house wherein five men and two women were alleged to have been residing. During search, in the house it was found that besides house owner Prabhu (A1), five other men and two women were busy in making smack from opium and during this process, stove was burning, over which cauldron was lying full of opium liquid which was being warmed and similarly there was a plastic tub full of brownish liquid, besides there being opium liquid duly filled up in two of tubs and one plastic canister. IT was also found that there were one big plastic phial and eight small plastic phials having labelled of `doctor brand spirit' being kept near plastic tubs and that apart there was also one aluminium small cauldron (Bhagona) full of lime liquid and also 21 empty cloth sachets full of opium smells. Upon having found aforesaid material in the house, each and every member of residents therein were warned to stand thereby for search of the house by the raiding party and were asked to produce any license for keeping smack or manufacturing thereof from opium but they failed to do so. Accordingly, weight of all articles, opium, smack, and other liquid materials got done including cauldron and its weight including cauldron was found 2 kgs and without cauldron its weight (of opium etc.) was 10 kgs out of which two samples each of 100 gms were taken and were got seized and sealed in a plastic sachet first by keeping in a lid of `jafrani' and then by overwrapping white cloth in a sealed cover. Similarly liquid opium lime was weighed at 15 kgs while plastic tub was weighed at 490 gms and thereafter two samples each of 100 gms were taken thereof which were also got sealed. Further one cloth sack (small) containing smack was got weighed and it was found 112. 7 gms including sack, while sack without material was weighing at 51. 8 gms and thereafter two samples each of 5 gms were taken and sealed firstly by keeping it in an empty lid of `jafrani' and then by wrapping white cloth. Similarly a plastic sack of 4 gms containing 292 gms including sack was seized and out of which two samples each of 50 gms are taken and sealed. Other empty phials, sachets, and canister etc. were also seized and sealed, besides a lantern, funnel, balance with measures-three of 500 gms, one of 200 gms, and one of 100 gms. Accused appellants were arrested at the spot during search after their personal search and seizure of belongings found in their possession three plastic tubs and one old gunny sack so also one aluminium cauldron (Bhagona) containing lime liquid were also got seized and sealed in the presence of attesting motbir witnesses. Thereupon crime was registered at No. 468/97 of the aforesaid search for the commission of offence punishable under Sections 8/18, 8/21 and 8/25 of the NDPS Act at PS Chhipa Barod and the investigation was handed over to Ramchandra SHO and after having registered FIR, seized and sealed packets A to K were deposited in the Malkhana and the investigation commenced. After usual investigation and completion thereof, charge sheet was produced against the accused appellants for offences under Section 8/18, 8/21 and 8/25 of the NDPS Act. However the learned trial Court framed the charges against the appellants for offences under Sections 8/18 and 8/21 of the NDPS Act, to which they pleaded not guilty and claimed trial. The prosecution produced as many as 13 witnesses and 49 documents we got exhibited. The accused appellants were examined under Section 313 Cr. P. C. but they failed to produce any evidence in defence despite being granted four chances. After hearing both the parties, by the impugned judgment dated 15. 2. 1999, the learned Special Judge (NDPS Cases), Chhabra (Baran) convicted and sentenced each of the appellants as indicated above. Hence this appeal. During the course of arguments, Shri Suresh Sahni learned counsel for the accused appellants firstly contended that though Madholal (PW 5) and Ramsingh (PW 6) were introduced as independent witnesses to the recovery and seizure during impugned search but they have not only turned hostile but also explicitly deposed during trial that the police obtained their signatures/thumb impressions under threat and coercion but this aspect has totally been ignored by the trial Court. Secondly Shri Sahni argued that the trial Court erred in completely ignoring that not only the search but also the seizure process was illegal because the process through which samples were taken did not conform to the rules as is evident from the fact that their weight did not tally with FSL report (Exp47), inasmuch as the prosecution evidence in regard to taking of samples and sealing thereof belied the prosecution story and falsified the entire process of search and seizure. Next contention canvassed by Shri Sahni is that the trial Court erroneously appreciated the evidence of Ghasilal (PW 3) who is the Head Constable and was Malkhana Incharge and as per his evidence once it stood established that the samples were returned by the FSL, because this witness admitted that it is correct that objections are of two types firstly the seal is broken and the other objection has no fact, and therefore, taking of the samples renders doubt for the prosecution story. Further there was omni present obeisance lacuna in sealing process of the sample taken which legally warrants and clamours for justice that prosecution case be thrown beyond audibility and visibility of the law because there was no double sealing rather sealing process was done contrary to Rr. 2. 02, 2. 09, 3. 03 and 4. 01 of the NDPS Rules, 1985.
(3.) SHRI Sahni also vociferously argued that the grave dent has taken place in the prosecution case for the reason that entire seized articles were not produced before the trial Court therefore, an adverse inference ought to have been drawn but the trial Court eschewed as irrelevant for by observing that "it is correct that during entire trial opium, smack and other evidence which were seized at the spot were not produced but looking to the heavy recovery, only for this reason the accused cannot be acquitted. " Shri Sahni also laid stress that personal search of female accused (A6 and A7) was carried out in contravention of the law vide Ex. P35 & P40. Lastly Shri Sahni contended that the trial Court erroneously appreciated the evidence of Ashwini Kumar (PW 12) despite the fact that this witness made various contradictions besides omissions as to the information, reaching of raiding party to the spot, option of gazetted officer of Magistrate, regarding testing of contraband opium/smack and illumination of lantern, because he stated that he did not give any search to any of the accused; and that specimen seal was drawn by him but not available on record nor any document was scribed by him; and as regards violation of Sec. 157 Crpc he admitted that FIR (Exp 47) was received by the Magistrate on 21. 11. 1997 but he deposed that it was despatched by him to the Magistrate on 18. 11. 1997 and similarly there was his admission that it is correct that as per law gazetted officer was required to accompany him before conducting the search but no such officer did join him. ;