CALLA, J. - (1.) THIS Criminal Appeal u/s 374 (2) Cr. P. C. is directed against the judgment and order passed by Additional District & Sessions Judge, Rajsamand in Sessions Case No. 12/87 on 11. 9. 1990 whereby the appellants were convicted u/s 8/17 of Narcotic Drugs & Psychotropic Substances Act, 1985 and sentenced to 10 years Rigorous Imprisonment and a fine of Rs. 1,25,000/- (Rs. One Lac, Twenty Five Thousand) each and in default to further undergo 2 years, 6 months R. I.
(2.) ACCORDING to the case of the prosecution, Inspector of Chittorgarh namely; Shri Madanlal Meena had instructed the Sub- Inspector, Shri Prabhat Kumar Rai of Central Narcotic Bureau, Jodhpur on 5. 8. 1986 that he may reach Matrikundaya Road while checking vehicles from Jodhpur. ACCORDINGly, Sub-Inspector, P. K. Rai proceeded with the checking party. While checking the vehicles at 11. 45 a. m. on 6. 8. 86 on the Ghati near Village Selaguda a Motorcycle No. RJE 1948 was noticed while coming from Ameth. Two persons were found on this motorcycle who are the accused-appellants and in a tin container at the back of this motor cycle two bags were found containing substance which gave smell and taste like Opium as per the Sub-Inspector and members of the checking party in presence of the Motbirs. One bag was containing 10. 400 Kg. and the other bag was containing 3. 300 Kg. Opium. For the Chemical Examination 25 gms. of the substance was taken out from each of the two bags separately and the same were sealed and the rest of the Opium was also sealed. Accused-appellants were arrested vide Exh. P-2 and Exh. P-3, Motorcycle was seized vide Exh. P-4 and the site map Exh. P-5 was prepared with regard to the spot where the Opium was recovered. Exh. P-6 is the sample of the seal. Sub-Inspector, P. K. Rai addressed the FIR vide Exh. P-7 of this incident to the Superintendent, , Narcotic Preventive Cell, Jodhpur and also presented the papers which were prepared on the spot. On this basis case No 2/86 was registered and during the course of investigation the statements were recorded by Inspector Shri Madan Lal Meena and the samples which were taken out from the bags were sent for the chemical examination to Neemach Laboratory. Exh. P-8 is the receipt in token of the delivery of the sample. Sample was examined and the report is Exh. P-9. According to this report the sample contains 12% Morphin and, therefore, it was Opium. It is the case of the prosecution that the sample was first sent on 12. 8. 86 which was returned by the Laboratory vide Exh. P-10 and the sample was sent back. Ultimately, the charge-sheet was filed in the Court and the trial was held by Additional District & Sessions Judge, Rajsamand. In all 10 witnesses were examined by the prosecution and 11 documents were exhibited. The learned Additional District & Sessions Judge, Rajsamand convicted both the appellants u/s 8/17 of the NDPS Act and sentenced each of them to 10 years R. I. and a fine of Rs. 1,25,000/- each and in default of which each of them is to further undergo R. I. for a period of 2 years. Apart from the grounds based on various provisions as contained in Sections 42,57,55,50 & 54 of the NDPS Act and that the Seizure was not reported to the Superior Officers within the prescribed period of 48 hours and that Shri P. K. Rai was not authorised to investigate and Shri M. L. Meena did not make any effective investigation, and no investigation whatsoever about the ownership of Motorcycle although according to prosecution itself none of the two appellants are the registered owner of the Motorcycle in question; it was also submitted by Shri Dungar Singh on behalf of the appellants that in this case the conviction of the appellants cannot be sustained for the simple reason that the manner in which the sample was sent for chemical examination and the return thereof read with contents of the chemical report Exh. P-9 which is not at all compatible with the contents of the basic document Exh. P-1 which was prepared at the time of the investigation, renders the whole prosecution case to be suspicious. In all such matters where the criminal liability entails a minimum sentence of 10 years and fine of Rs. 1,00,000/- (Rs. One Lac), the prescribed procedure has to be followed with all rigours and strictness. Shri Dungar Singh submits that the appeal may be decided on this aforesaid point alone. In this view of the matter, without dealing with the other points, I straightway proceed to adjudicate upon this point raised and stressed by Shri Dungar Singh. It is not in dispute that the recovery was from two separate bags, one bag containing 10. 400 Kg. and other containing 3. 300 Kg. P. W. 1, P. K. Rai, Sub-Inspector says that the samples of 25 gms. from each of the two bags were taken. The relevant portion of his statement is to the following effect: ***********
(3.) P. W.-2 Mohammad Rehan, Constable in the Narcotics Department, Jodhpur has stated as under: ************ P. W.-3, Kishan Gopal, Constable in the Narcotics Department, Jodhpur has stated as under: *********** P. W.-7, Lal Singh, Constable in the Narcotics Department, Jodhpur has stated as under: *********** ;