Sunil Kumar Garg, J. - (1.) This appeal has been filed by the accused appellant against the judgment and order dated 24.1.2001 passed by the learned Special Judge, NDPS Cases, Jalore Camp Bhinmal in Sessions Case No. 1/2000 by which he convicted the 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 to undergo ten years' Rigorous Imprisonment and to pay a fine of Rs. 1 lac, in default of payment of fine, to further undergo six months R.l.
(2.) It arises in the following circumstances- On 7.12.1999, RW. 8 Gopal Ramawat received a secret information at about 7.00 A.M. on telephone from the mukhbir to the effect that accused appellant, who was driver in the Roadways and who lived in Kalka Colony in the house of RW. 4 Shantilal as a tenant, had brought Bus from Jaipur to Jalore and also brought with him 2 kg. milk of opium in the bag of ragsin and he has kept in his house. That information was reduced into writing by RW. 8 Gopal Ramawat in Ex. P/10 and copy for that information Ex. P/11 was sent to SR Jalore and thereafter, RW. 8 Gopal Ramawat alongwith P.W. 1 Achaldan. RW. 10 Chetan Lal and others proceeded towards the house of RW. 4 Shantilal and when they reached near hospital crossing at about 7.30 A.M., they took one motbir RW. 6 Tejaram and when they reached near the club at Jalore, they took another motbir P.W. 5 Dhudaram and at about 7.55 A.M. they reached the house of PW. 4 Shantilal in Kalka Colony where RW. 4 Shantilal was found standing before his house and he was asked about the accused appellant and he told that accused appellant was his tenant and, thereafter, RW. 8 Gopal Ramawat knocked the door of the room, in which accused appellant was residing as a tenant and upon this, the accused appellant opened the gate and came out and on being asked he told his name as Ram Chandra (accused appellant) and, thereafter, he was given notice (Ex. P/4) under section 50 of the NDPS Act asking him whether he wanted to be searched before the Magistrate of Gazetted Officer and upon this, he gave his consent that search could be made by RW. 8 Gopal Ramawat. Thereafter, room was searched and on the right side, there was a table and beneath that table, there were three attachies and near the attachies, there was regsin bag and that bag was opened and on opening that bag, 2 kg. 100 grms. milk of opium was found in it and out of that milk of opium, two samples of 50 grms. each were taken and sealed on the spot separately and marked as A and B and rest milk of opium was also sealed separately on the spot and marked as C. RW. 8 Gopal Ramawat prepared the fard of search and seizure on the spot and the same is Ex. P/1. The specimen impression of seal was taken on Ex. P/2. The fards of consent of two motbirs Dhudaram (RW. 5) and Tejaram (RW. 6) are Ex. P/3 and Ex. P/7 respectively. The accused appellant was arrested through arrest memo Ex. P/6. RW. 8 Gopal Ramawat chalked out the regular FIR Ex. P/16. The information under section 57 of the NDPS Act about search and seizure was sent to SP. Jalore through Ex. P/18A. The seized articles were deposited in the Malkhana. Thereafter, vide letter Ex. P/9, samples A & B were sent to FSL, Jaipur through RW. 7 Bairam, who deosited the same in the FSL, Jaipur and got receipt Ex. P/8. The FSL report is Ex. P/13, in which it was reported that the sample contained in each of the packet marked A and B gave positive tests for the presence of chief constituents of coagulated juice of opium poppy having 2.47% (Two Point four seven percent) morphine in each sample. After usual investigation, police filed challan against the accused appellant in the Court of Magistrate, from where the case was committed to the Court of Session. On 26.4.2000, the learned Special Judge, NDPS Cases, Jalore Camp Bhinmal framed charges for the offence under sections 8/17 & 8/18 of the NDPS Act against the accused appellant. The charges were read over and explained to the accused appellant. The accused appellant denied the charges and claim trial. During the course of trial, the prosecution in support of its case examined as many as 13 witnesses and got exhibited several documents. Thereafter, statement of the accused appellant under section 313 Cr. PC. was recorded in which he also took the plea that the bag in question belonged to Ladhudan Charan and not to him. In defence, the accused appellant produced one witness. After conclusion of trial, the learned Special Judge, NDPS Cases, Jalore Camp Bhinmal through his judgment and order dated 24.1.2001 convicted the accused appellant for the offence under section 8/18 of the NDPS Act and sentenced in the manner as indicated above holding inter-alia - (1) That prosecution has proved its case beyond all reasonable doubts against the accused appellant for the offence under section 8/18 of the NDPS Act. (2) That from the evidence, it is also established that bag from which milk of opium was recoverd belonged to accused appellant and he was in exclusive possession of it and the argument of the learned counsel appearing in the trial Court for accused that bag in question belonged to Ladhudan Charan was rejected by the learned Special Judge. Aggrieved from the said judgment and order dated 24.1.2001 passed by the learned Special Judge, NDPS Cases, Jalore Camp Bhimal, this appeal has been filed by the accused appellant.
(3.) In this appeal, the learned counsel for the accused appellant has raised only one submission and the same is that the prosecution has utterly failed to prove that the bag in question exclusively belonged to the accused appellant, as it has been admitted by the witnesses of the prosecution, namely RW. 4 Shantilal, PW. 5 Dhudaram and RW. 6 Tejaram, who were independent witnesses, that in the bag in question, there was license in the name of Ladhudan Charan and clothes of Ladhudan Charan were also there in the said bag and there is also evidence that he was also staying in that room and, therefore, the learned Special Judge has committed mistake in holding that the bag in question was in exclusive possession of the accused appellant and thus, the findings of the learned Special Judge are liable to be set aside and the accused appellant is entitled to acquittal.;