SHARMA, J. - (1.) THIS criminal appeal by accused appellant Bheru Lal has been preferred against the judgment and order dated March 16, 1999 passed by the learned Special Judge, NDPS Cases and Additional Sessions Judge, Ramganj-Mandi, District Kota by which he has convicted the accused appellant under Section 8/18 of the Narcotic Drugs and Pshychotropic Substances Act, 1985 (hereinafter to be referred as `the Act') and sentencing him to undergo rigorous imprisonment for 10 years with a fine of Rs. 1,00,000/-, in default of payment of fine, to further undergo 2 & 1/2 years simple imprisonment.
(2.) SUCCINCTLY stated the contextual facts of the case are that on March 18, 1998 at 4. 00 PM, a Preventive Party under the leadership of PW. 4 Suresh Kishnani, Assistant Commissioner, Narcotics, Kota reached village, Bholu for the purpose of getting preliminary weight of the opium produced by the cultivators for the crop year 1997-98. During process, accused Bheru Lal produced opium weighing 4 kg cultivated and harvested under the licence bearing No. 32 issued in the name of his wife Nandu Bai. The Assistant Commissioner, Narcotics informed Bheru Lal that the weight of opium is less as compared to the land cultivated, which was 17 `aaries'. Accordingly, he directed the accused appellant that if he has concealed the opium, then he should also get the concealed opium weighed. Bheru Lal hesitatingly denied the possession of any opium with him. Found the answer of the appellant being suspicious, the Assistant Commissioner, Narcotics alongwith the members of the preventive party and witnesses, namely, PW. 2 Bheru Lal and PW. 1 Bhojraj, proceeded to the house of accused. Accused pointed out his house. PW. 3 P. C. Dhyani, Inspector, Narcotics Department informed the accused about his suspicion and by notice Ex. P1 made him aware of his legal right under Sec. 50 of the Act to get his house searched either in the presence of a Magistrate or a Gazetted Officer. Accused consented for the search of his house by the Inspector himself. During search of house, opium weighing 6 kgs was recovered vide memo Ex. P. 2. It is stated in the memo, Ex. P. 2 that since the object behind concealing opium out of the opium cultivated/produced was to make embezzlement and then to smuggle embezzled opium and, therefore, the opium was seized under the provisions of Section 8/18 for contravention of the provisions of Section 8/19 of the Act. P. C. Dyani prepared site plan, Ex. P. 3, seized the opium weighing 4 kgs. produced under the licence, vide memo Ex. P6 and also seized the paper of a register, Ex. P. 8 showing daily accounts of the opium collected, vide seizure memo Ex. P. 7. On completion of necessary formalities including arrest of the appellant, Shri P. C. Dyani submitted a First Information Report Ex. P. 14 to the Superintendent, Narcotics Bureau, Kota. The Superintendent, Central Bureau of narcotics vide letter Ex. P. 15 sent the sample of opium to the Government Opium and Alkaloid Works, Neemuch through one Sharif Mohd. , Sepoy of his office. The Analysis report, Ex. P. 19 shows that the each of the sample was found of opium within the meaning of NDPS Act, 1985. On competition of investigation, a charge sheet was submitted against the appellant in the court of learned Special Judge, NDPS Cases Ramganjmandi, Kota. The learned Special Judge, after hearing arguments of both the parties, framed charge against the appellant under Sec. 8/18 of the Act. The accused denied the charge and claimed trial. The prosecution, in support of its case examined as many as 8 witnesses and exhibited some documents. Thereafter, accused appellant was examined under Section 313 Cr. P. C. In his explanation, the accused stated that during course of taking preliminary weight, the persons of the department had entered into the temple with shoes, which was objected by his son and the residents of the village and for that reason the departmental personnels became annoyed and concocted a false case. The accused further stated that since he failed to fulfil the demand of Rs. 20000/- raised by the departmental personnels, they have falsely involved him. At the conclusion of trial, the learned Special Judge found the prosecution case as alleged, proved and according held the accused appellant guilty of having committed offence under Sec. 8/18 of the Act and convicted and sentenced him as aforesaid.
(3.) FEELING aggrieved by the judgment of conviction and sentence, the appellant has preferred this appeal. I have heard learned counsel for the parties and carefully perused the impugned judgment and the evidence and material on record. At the out-set, it may be noted that it is an admitted position that Preventive party reached village Bholu for the purpose of preliminary weighment of opium cultivated by cultivators under the licences issued under Rule 8 of the Narcotic Drugs and Psychotropic Substances Rules, 1985 (hereinafter to be referred as "the Rules") Similarly, it is also an admitted fact that Nandu Bai wife of accused is also a licensee for cultivation of opium and her licence No. is 32. ;