Dr. GOMBER, J. - (1.) ACCUSED-appellant Shyam Kumar has preferred this appeal against the judgment of conviction and order of sentence dated 23.12.2003 passed by learned Special Judge, Narcotic Drugs & Psychotropic Substance Cases, Jaipur in Sessions Case No. 11/2003 whereby the appellant has been convicted for offence under Section 8/21 of Narcotic Drugs & Psychotropic Substance Act, 1985 (hereinafter referred to be as 'the Act'), and has been sentenced to undergo rigorous imprisonment for ten years' and fine of Rs.1,00,000/- (rupees one lac) and in default thereof to further undergo two years' rigorous imprisonment.
(2.) THE relevant facts of the case are that on 5.1.2003, S.H.O. Chhagan Lal (PW-14), PS-Brahmpuri alongwith other police personnel consisting of three constables and a driver set out for routine patrolling duty at about 8.15 pm. THE patrolling party reached Sita Ram Bazar, Brahmpuri at about 9.15 pm and on the turning point, they saw a person in the suspicious circumstances who, on seeing the police jeep, tried to hide himself. On being asked as to what he was doing there, he could not answer satisfactorily; rather put his left hand which raised all the more suspicion. On enquired he disclosed his name as Shyam Kumar having smack in the pocket of his jacket. After detaining him, two independent witnesses i.e. Rahim Khan and Sharfuddin @ Baba were summoned. After informing about his legal right of getting the personal search done before a Gazetted Officer or a Magistrate, and after obtaining his consent PW-14 Chhagan Lal, SHO gave his own search and then proceeded for personal search of the accused Shyam Kumar. On search, pocket of jacket was found to contain 418 gms a substance which appeared and smelt like smack and after deducting the weight of the pouch, the substance weighed as 411.500 gms. Two samples of 5.0 gms each were taken out and were marked as 'A' and 'B' respectively whereas remaining substance was sealed and marked as 'C. All packets marked 'A' 'B' & 'C were sealed separately in one packet and marked as 'D'. THE accused was arrested and on return to the police station, the sealed articles were deposited in the Malkhana and case was registered. Sh.Dilip Sharma, S.H.O. Amer was entrusted with the investigation who got the sealed samples examined from Forensic Science Laboratory (for short as 'FSL'). THE report giving positive test of diacetylmorphine was received. After completion of investigation, charge-sheet was filed against the appellant for trial of offence under Section 8/21 of 'the Act'. The learned Trial Judge read over the charges under Section 8/21 of 'the Act'. The accused denied the charge and claimed trial. In order to substantiate its case, the prosecution examined as many as 14 witnesses and exhibited 22 documents. The accused was examined under Section 313 of the Code of Criminal Procedure (for short as 'Code') wherein he alleged false implication but did not lead any defence. After hearing the parties and evaluating the material before it, the learned Trial Court recorded the finding of conviction on the basis that the recovered substance was a contraband and the quantity recovered was commercial. Consequently the appellant was convicted & sentenced as mentioned hereinabove vide order impugned.
(3.) THE learned counsel for the appellant assailed the order impugned on various grounds: (i) First argument advanced was predicated upon the fact that the mandatory provisions of Section 42 of 'the Act' have not been complied with and that their non-compliance vitiates the trial. (ii) THE second argument advanced was predicated upon the fact that there was interpolation on the notice Ex.P/15 and consent Ex.P/24 obtained from the witnesses and that itself falsifies the entire prosecution story. (iii) THE third argument advanced was predicated upon the fact that in FSL report, the percentage of contraband has not been given and it could not be stated that the entire substance allegedly recovered from his possession was contraband. Reliance was placed on the judgment of E.Michael Raj vs. Intelligence Officer, Narcotic Bureau-2008(2) WLC (SC) (Cri.) 265. Learned Public Prosecutor, on the other hand, argued that the recovery in the present case was a chance recovery that too from a public place and not any enclosed building, therefore, the provisions of Section 42 of 'the Act' were not attracted. Further that just because inadvertently some date has been put by the SHO under his signature, does not mean that the documents are false. Draw- ing my attention to the body of Ex.P/15 & Ex.P/24 it was submitted that the documents read as a whole clearly show that this was inadvertent mistake. ;