Sunil Kumar Garg, J. - (1.) This appeal has been filed by the accused-appellants against the judgment and order dated 19.3.1998 passed by the learned Sessions Judge, Pratapgarh in Sessions Case No. 162/94 by which he convicted both the accused-appellants for the offence under section 8/21 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') and sentenced each of them to undergo ten years RI and to pay fine of Rs. one lac, in default of payment of fine, to further undergo six months' RI.
(2.) The facts giving rise to this appeal, in short, are as follows:- Facts pertaining to accused-appellant No. 1-Shamin Khan The case of the prosecution is that on 14.7.1994, PW 10 Prasan Kumar, Dy.S.P., Chouti Sadri received a secret information from Mukhbir to the effect that two persons had gone to village Ambawali for purchasing heroin and heroin would be sold to them by Shamin Khan (accused-appellant No. 1) near the bushes of tree near the field of Nanda Rawat. That information was reduced into writing by PW 10 Prasan Kumar and the same is Ex.P/ 25 and as per the secret information, PW 10 Prasan Kumar alongwith other police officials including PW5 Datar Singh, SHO, Police Station Chouti Sadri, PW 9 Rajendra Singh, SHO, Badi Sadri and Shyamlal, Head Constable proceeded towards the spot at about 2.00 p.m. in Government Jeep and reached there at about 4.30 p.m., where they saw a person coming on bicycle and he was also having a bag on his cycle and that person stopped his cycle near the tree and kept bag in his hand and started seeing here and there as if he was waiting for somebody. Upon this, PW 10 Prasan Kumar came to the conclusion that this person was the same person for whom he has received secret information from Mukhbir. Thereafter, that person, in the presence of two motbirs, namely, PW 3 Kanwarlal and PW 4 Keshuram and other police officials, was caught hold and on being asked, he told his name as Shamin Khan S/o Samand Khan (accused-appellant No. 1) and PW 10 Prasan Kumar informed the accused-appellant No. 1 that he had information that accused-appellant No. 1 had heroin with him. Thereafter, a notice Ex.P/6 was given by PW 10 Prasan Kumar to accused-appellant No. 1 asking him whether he wanted to be searched by PW 10 Prasan Kumar, who was a Gazetted Officer or whether he wanted to be searched before any Gazetted Officer or Magistrate. Upon this, accused-appellant No. 1 gave his consent that he could be searched by PW 10 Prasan Kumar and thereafter, bag, which was in the possession of the accused-appellant No. 1, was opened and in that, a polythene pouch of green colour containing some contraband article was recovered and on seeing it, it was assessed that it was nothing, but heroin. Thereafter, it was weighed and its weight was found to be 300 grms. and out of 300 grms., two samples of 10 grms. each were taken for chemical analysis and they were sealed separately and marked as A-1 & A-2 and rest heroin was also sealed and marked as 'A'. The accused-appellant No. 1 informed that he had taken this heroin from one Amjad Khan. The fard of search and seizure Ex.P/5 was prepared on the spot by PW 10 Prasan Kumar and specimen seals were also taken by PW 10 Prasan Kumar on separate paper and the same is Ex.P/ 7. The accused- appellant No. 1 was arrested through Ex.P/26 and all the seized articles were sent through PW 5 Datar Singh, SHO, Police Station Chouti Sadri for being handed over to PW 7 Padam Singh, SHO, Police Station Dholapani. The report Ex.P/10 written by PW 10 Prasan Kumar was also given by him to PW 5 Datar Singh for handing over to PW 7 Padam Singh and PW 5 Datar Singh handed over the same to PW 7 Padam Singh. Thereafter, regular FIR Ex.P/13 was chalked out at police station Dholapani. PW 7 Padam Singh deposited all the articles in the Malkhana and they were received by PW 8 Bhanwar Singh, Malkhana Incharge and copy of Malkhana Register is Ex.P/ 24. Facts pertaining to accused-appellant No. 2-Amjad Khan @ Munna Khan Through Ex.P/3, PW 7 Padam Singh arrested this accused- appellant on 15.7.1994 and during arrest, he gave information Ex.P/14 that in one room of his house there was a stand and he could get recovered heroin, which was kept in a dibbi. On this information, PW 7 Padam Singh at about 2.15 p.m., in presence of two motbirs PW 2 Mangilal and Nanuram recovered 12 grams. heroin and since it was small quantity, no sample was taken and it was sealed on the spot and marked as 'C'. The fard of recovery and seizure of heroin from accused-appellant No. 2-Amjad Khan @ Munna Khan is Ex.P/ 1. The seized article 'C' was also given by PW 7 Padam Singh to PW 8 Bhanwar Singh, Malkhana Incharge, who deposited the same in the Malkhana on 15.7.1994. Thereafter, along with letter Ex.P/11, two samples marked A-1 and 'C' were sent to FSL, Jaipur through PW 6 Ram Singh and receipt of depositing them in FSL is Ex.P/12. The report of FSL is Ex.P/ 23, where it has been stated that both samples A-1 and C gave positive test for the presence of Diacetyl morphine (Heroin). After usual investigation, police submitted challan in the Court against both the accused-appellants. On 17.2.1995, the learned Sessions Judge, Pratapgarh framed charges against both the accused-appellants for the offence under section 8/21 of the NDPS Act. The charges were read over and explained to the accused-appellants, who pleaded not guilty and claimed trial. During trial, the prosecution in support of its case examined as many as 11 witnesses and got exhibited some documents. Thereafter, statements of the accused-appellants under section 313 Cr.P.C. were recorded. Five witnesses were produced in defence and some documents were also got exhibited by the accused- appellants in defence. After conclusion of trial, the learned Sessions Judge, Pratapgarh vide his judgment and order dated 19.3.1998 convicted both the accused-appellants for the offence under section 8/21 of the NDPS Act and sentenced each of them in the manner as indicated above holding inter alia: 1. That compliance of Sections 42 & 50 of the NDPS Act has been made by the prosecution in the present case. 2. That seals on samples marked A-1 and C, which were sent to FSL, were intact. 3. That the prosecution has proved its case beyond reasonable doubt against the accused-appellant No. 1-Shamin Khan for the offence under section 8/21 of the NDPS Act. 4. That the prosecution has also proved its case beyond reasonable doubt against accused-appellant No. 2-Amjad Khan @ Munna Khan and the plea that Heroin was recovered from joint house was also rejected by the learned Sessions Judge. Aggrieved from the said judgment and order dated 19.3.1998 passed by the learned Sessions Judge, Pratapgraph, this appeal has been filed by the accused-appellants.
(3.) In this appeal, the following submissions have been made by the learned counsel for the accused-appellants : 1. That compliance of Section 42 of the NDPS Act, which is mandatory in the present case, has not been made by the prosecution. 2. That in the present case, after recovery of contraband articles from accused-appellant No. 1-Shamin Khan, as per the statement of PW 10 Prasan Kumar, he handed over all articles to PW 5 Datar Singh and PW 5 Datar Singh handed over the articles to PW 7 Padam Singh, who put his own seal and no specimen seal of PW 7 Padam Singh was taken and apart from this, from the statement of PW 8 Bhanwar Singh, it is also clear that sealed articles were given to PW 6 Ram Singh first on 23.8.1994 and they were returned back with some objections and later on, they were again given to PW 6 Ram Singh on 25.8.1994 for sending them to FSL, but such entries are not found in the Malkhana Register. Thus, there is possibility that the seals have been tampered with. 3. That compliance of Section 50 of the NDPS Act has also not been made by the prosecution. 4. That so far as the case of accused-appellant No 2-Amjad Khan @ Munna Khan is concerned, the house from where recovery was made was not in his exclusive possession and thus, he cannot be made liable and he is entitled to acquittal on this ground alone. Hence, it is prayed that this appeal be allowed and both the accused-appellants be acquitted of the charges framed against them.;