GARG, J. - (1.) THIS appeal has been filed by the accused appellant against the judgment and order dated 28. 3. 2001 passed by the learned Special Judge, NDPS Cases, Bhilwara in Sessions Case No. 32/99 by which he convicted the accused appellant for the offence under Section 8/15 of the Narcotic Drugs and Psychotrophic Substances Act, 1985 (hereinafter referred to as the `ndps Act') and sentenced him to undergo RI for ten years and to pay a fine, to further undergo SI for six months.
(2.) IT arises in the following circumstances :- On 8. 8. 1999 at about 10. 15 AM, PW5 Kailash Chandra lodged a written report Ex. P/2 before PW17 Jai Singh, who was SHO Police Station Jahajpur District Bhilwara stating inter-alia that he was a driver for Jeep No. RJ 20-P-1832 and owner of that Jeep was PW6 Man Singh and in the evening he took that Jeep to Panchanpur and kept it there and at about 9. 00 PM in the night, the owner of the Jeep Man Singh (PW6) asked PW5 Kailash Chandra that company of Band Baja was to be taken from Peeplund as it was desired by PW1 Mohan and, thereafter, PW5 Kailash Chandra went to the house of PW1 Mohan and then he alongwith PW1 Mohan and his other companions including PW2 Pallulal, PW-4 Om Prakash and some other persons went to Peeplund, where some members belonging to Bend Baja Company sat in the Jeep and from where they reached Ghatarani Mataji, where PW1 Mohan and his companions alighted from the Jeep. IT was further stated in the report that at about 4. 20 AM in the morning, a person on cycle came from Bhagwasa and on the back of his cycle, there was a bag and on being asked by PW5 Kailash Chandra what was in that bag, that person told him that it contained, Chilli, but thereafter, that person became perplexed and told him that it contained doda post and on being asked, he told him name as Narain Lal (present accused appellant ). After that, PW5 Kailash Chandra lodged the report Ex. P/2 and produced the accused appellant alongwith his cycle before PW17 Jai Singh, who was at that time SHO, Police Station Jahajpur. At about 10. 15 AM on 8. 8. 99, PW17 Jai Singh took steps for conducting search of the accused appellant and since he had suspicion that there might be doda post in the bag belonging to accused appellant, therefore, he gave notice Ex. P/14 under the provisions of Sec. 50 of the NDPS Act to the accused appellant asking him whether he wanted to be searched before the Magistrate or Gazetted Officer and upon this, accu- sed appellant told that he could be searched in presence of the Gazetted Officer. The above proceedings were endorsed on the back of the report Ex. P/2 by PW17 Jai Singh. Thereafter, PW17 Jai Singh called PW-12 Hem Singh, S. D. O. Shahpur and PW-11 Mohd. Rafique, Nayab Tehsildar, Jahajpur and they reached the Police Station and, thereafter, the proceedings of search of the bag, which was lying on the cycle belonging to the accused appellant, were conducted and on opening that bag, doda post was found in it, for which the accused appellant was not having any valid license. The doda post was weighed on the spot and its weight was found to be 20 kgs. , out of which, two samples of 250 grms. each were taken and sealed separately on the spot and marked as A/1 and A/2 and the remaining doda post was also sealed separately on the spot and marked as A. PW-17 Jai Singh prepared the fard of search and seizure on the spot and the same is Ex. P/3. The accused appellant was arrested through arrest memo Ex. P/11. PW/17 Jai Singh chalked out regular FIR Ex. P/15. A detailed report was sent to superior officer by PW17 Jai Singh and the same is Ex. P/16. All the recovered articles and samples were handed over by PW. 17 Jai Singh to the Malkhana Incharge PW16 Mithulal, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex. P/13. Thereafter, PW16 Mithulal gave one sample to PW13 Ghanshyam through letter Ex. P/6 for depositing the same in FSL, Jaipur and PW-13 Ghanshyam brought that letter alongwith sample to SP Office where he handed over that sample first to PW-3 Bhagwatilal, who gave another letter Ex. P/7 from SP Office to FSL, Jaipur and, thereafter, PW-13 Ghanshyam deposited the sample in the FSL, Jaipur on 18. 8. 1999 and obtained receipt Ex. P/8. The FSL report is Ex. P/12, in which it was reported that the sample contained in the packet marked A/1 gave positive tests for the presence of chief constituents of opium, hence the sample is dried crushed capsule of opium poppy from which juice has been extracted. IT may be stated here that later on, investigation was handed over to PW15 Nemichand, who prepared the site plan Ex. P/4. After usual investigation, police submitted challan for the offence under Section 8/15 of the NDPS Act against the accused appellant in the Court of Special Judge, Bhilwara. On 27. 11. 1999, the learned Special Judge, NDPS Cases, Bhilwara framed charge for the offence under Section 8/15 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. During trial, the prosecution, in support of its case, examined as many as 17 witnesses and got exhibited several documents. Thereafter, statement of the accused appellant under section 313 Cr. P. C. was recorded. In defence, no evidence was produced by the accused appellant. After conclusion of trial, the learned Special Judge, NDPS Cases, Bhilwara through his judgment and order dated 28. 3. 2001 convicted the accused appellant for the offence under Section 8/15 of the NDPS Act and sentenced him 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 said offence. Aggrieved from the said judgment and order dated 28. 3. 2001 passed by the learned Special Judge, NDPS Cases, Bhilwara, this appeal has been filed by the accused appellant. In this appeal, the following submissions have been raised by the learned counsel appearing for the accused appellant:- (1) That in the present case, prosecution has not been able to prove that the cycle in question and the bag which was put on the back of the cycle, exclusively belonged to the accused appellant and thus, the fact that the recovery of doda post has been made from the exclusive possession of the accused appellant has not been proved beyond reasonable doubt. (2) That witnesses pertaining to the lodging of the report Ex. P/2 and persons who brought the accused appellant from the tea shop to the Police Station Jahajpur have been declared hostile and therefore, when initial case of the prosecution goes off, the rest case of the prosecution cannot be held to be proved and thus, from this point of view, the accused appellant is entitled to acquittal, as foundation of the story of the prosecution is shattered. (3) That all proceedings of search and seizure were conducted in the Police Station and therefore, this aspect itself creates doubt on the prosecution story and from this point of view also, the accused appellant is entitled to acquittal. Hence, it was prayed that this appeal be allowed and the accused appellant be acquitted of the charge framed against him. On the other hand, the learned Public Prosecutor supported the impugned judgment and order dated 28. 3. 2001 passed by the learned Special Judge, NDPS Cases, Bhilwara. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case. The initial case of the prosecution is that PW-5 Kailash Chandra lodged the report Ex. P/2 with the Police Station Jahajpur and alongwith that report, he also produced the accused appellant alongwith his cycle and bag which was put on the cycle, before PW-17 Jai Singh, who was at that time SHO Police Station Jahajpur. PW-5 Kailash Chandra, who lodged the report Ex. P/2, has been declared hostile and other persons, who were at the tea shop and those persons, who came to Police Station alongwith PW-5 Kailash Chandra have also been declared hostile and they are PW-1 Mohan PW-2 Pappulal, PW-4 Om Prakash, PW-5 Kailash Chandra, PW-6 Man Singh, PW-7 Kailash, PW-8 Prabhulal, PW-9 Ambalal and PW-10 Kanti Chandra.
(3.) THUS, there is no dispute on the point that witnesses of the initial story have been declared hostile, but there is one more aspect that on the fard of search and seizure Ex. P/3, PW. 2 Pappulal, PW-4 Om Prakash, PW-5 Kailash Chandra, PW-8 Prabhulal and PW-10 Kanti Chandra have admitted their signatures. What would be the effect of it, would be discussed later on. For making search and seizure, the material witnesses in this case are PW-17 Jai Singh, who was at that time SHO Police Station Jahajpur, PW-11 Mohd. Rafique, who was at that time Nayab Tehsildar, Jahajpur and PW-12 Hem Singh, who was at that time S. D. O. Shahpur. Pw17 Jai Singh through his statement has stated that the report Ex. P/2 was lodged by Pw5 Kailash Chandra and at that time Pw2 Pappulal, Pw4 Om Prakash, Pw1 Mohan and others were also with him and accused appellant alongwith his cycle and bag was produced before him by Pw5 Kailash Chandra. This witness has further stated that he gave notice Ex. P/14 under the provisions of Section 50 of the NDPS Act to the accused appellant asking him whether he wanted to be searched before the Magistrate or Gazetted Officer and the accused appellant told him orally that he could be searched before the Gazetted Officer and for that he made entries in the notice Ex. P/14 and he has proved these entries. This witness has further stated that thereafter, he called Pw12 Hem Singh, SDO, Shahpur and Pw11 Mohd. Rafique, Nayab Tehsildar, Jahajpur and in their presence, proceedings of search and seizure were conducted and during search, the said recovery of doda post as stated was made. This witness has been cross examined at length, but nothing has come out from his statement which shows that he is telling lie or intending to implicate the accused appellant in this case falsely. ;