SUNIL KUMAR GARG, J. - (1.) This appeal has been preferred by the accused appeal from Jail against the judgment and order dated 1st December, 1999 passed the by the learned Special Judge, NDPS Cases, Bhilwara in Sessions Case No. 252/97, by which he convicted accused appellant for the offence under section 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 six months RI.
(2.) Since nobody was representing accused appellant as this appeal has been preferred from jail, therefore, this Court vide order dated 28.3.2001 appointed Shri Vineet Jain, Advocate as Amicus Curiae to argue the case on behalf of the accused appellant and he has argued the same.
(3.) It arises in the following circumstances : On 14.7.1997 at about 11.30 p.m., PW-2 Anil Paliwal made a Parchakayami Ex.P/9 in capacity as CO, Bhilwara stating inter alia that on that day at about 9.40 p.m., he received a secret information on telephone from mukhbir to the effect that one person, by caste Meena, resident of Banswara, had just alighted to Roadways Bus Stand from the Bus coming from Pratapgarh and he was having a Jacket on his shoulder and in that Jacket, there was contraband opium. That information was reduced into writing by PW-2 Anil Paliwal in Ex.P/4 and through PW-5 Krishna Chandra, copy of that information was sent to SP, Bhilwara and thereafter, he alongwith PW-3 Gopal Lal, PW-7 Babu Khan and PW-4 Sitaram proceeded towards the spot and reached Roadways Bus Stand, Bhilwara and he also took two motbirs, namely, PW-9 Satyanarain and PW-11 Chhotu Singh and after some time, they saw the person, as per secret information, near Canteen of Tea and seeing the police, he tried to run away, but he was caught by the police and on being asked, he told his name as Shankarlal (accused appellant) and then PW-2 Anil Paliwal told him that he had contraband opium and for that he was to be searched and PW-2 Anil Paliwal also asked him whether he wanted to be searched before Gazetted Officer or Magistrate and upon this accused appellant gave his consent that he could be searched by PW-2 Anil Paliwal and the fard of consent is Ex.P/5. Thereafter, accused appellant was searched and on search, a jacket (jola) was recovered and in it, four polythene packets were found and on opening, black substance was found in them and on being tasted, it was assessed that it was nothing but contraband opium. Thereafter, opium containing in four packets was weighed and its weight was found to be 4Kg. 200 grms. and for the purpose of .chemical analysis, out of these four packets, small quantity of opium was taken from each packet, which came to 50 grms, and it was kept in a small tobacco box and sealed on the spot and marked as sample All and the remaining opium was also sealed on the spot separately and marked as A. The fard of search and seizure prepared by PW-2 Anil Paliwal is Ex.P/6. The fard of specimen seal is Ex.P/7. The accused appellant was arrested through arrest memo Ex.P/8. The seized articles were given to PW-6 Jagmal Singh, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex.P/13. PW-8 Harsukhram sent a detailed report under section 57 of the NDPS Act to SP. Bhilwara through Ex.P/14. Vide letter Ex.P/1, PW-8 Harsukhram, SHO, Police Station Subhash Nagar,Bhilwara sent sample A/1 to SP, Bhilwara through PW-10 Mohd. Sayeed for sending it to FSL, Jaipur and after obtaining forwarding letter Ex.P/2 from SP Office, Bhilwara, PW-10 Mohd. Sayeed deposited the sample A/1 in the FSL, Jaipur and receipt of depositing it in FSL is Ex.P/3. The FSL report is Ex.P/17, which shows that the sample contained in the packet marked Al gave positive tests for the presence of chief constituents of coagulated juice of opium-poppy having 5.32 (Five point three two percent) Morphine. On this parchakayami, PW-8 Harsukhram, SHO Police Station Subhashnagar, Bhilwara chalked out regular FIR Ex.P/11 and after usual investigation, challan was filed against the accused appellant in the Court of Special Judge, NDPS Cases, Bhilwara. On 11.12.1997, the learned Special Judge, NDPS Cases, Bhilwara framed charge for the offence under section 8/18 of the NDPS Act against the accused appellant. The charge was read over and explained to the accused appellant. The accused appellant denied the charge and claimed trial. In support of its case, the prosecution examined as many as 11 witnesses and got exhibited several documents. Thereafter, statement of the accused appellant under Section 313 Cr.P.C. was recorded. No evidence was led in defence by accused appellant. After conclusion of the trial, the learned Special Judge, NDPS Cases Bhilwara, through his judgment and order dated 1.12.1999 convicted that accused appellant for the offence under section 8/18 of the NDPS Act and sentenced in the manner as indicated above holding inter alia that the prosecution has proved its case beyond all reasonable doubts against the accused. appellant for the offence under section 8/18 of the NDPS Act. Aggrieved from the said judgment and order dated 1.12.1999 passed by the learned Special Judge, NDPS Cases, Bhilwara, the accused appellant has preferred this appeal from jail. ;