S.P.PATHAK, J. - (1.) THE appellant has filed this appeal against the judgment of conviction and order of sentence dated 07.01.2000 passed by learned Special Judge, NDPS Cases, Chittorgarh in Sessions Case No. 305/97, whereby the accused -appellant has been convicted under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as -˜the Act) and sentenced him to 15 years R.I. and a fine of Rs. 2 lacs, in default of payment to further undergo one months R.I.
(2.) BRIEFLY stated, the facts of the present case are that on 04.05.1997 Ambalal (PW. 18), while posted as Sub -inspector, Police Station Kotwali, Chittorgarh, received a secret information Exhibit P/10 from Mukhbir that one Ambassador car bearing No. RJ -27C -1802 containing opium will be passing through Chittorgarh. On that day, SHO of the police station was Shri Ganpat Singh (PW.19) but since there was visit of one of the State Ministers of Rajasthan, he had gone out at about 6:00 AM on the security duty of that State Minister and the charge of Police Station, Kotwali was handed over to Ambalal (PW.18). Entry in Rojnamcha register Exhibit P/24 was made in this regard. The secret information from Mukhbir, which was received at about 10:00 AM was entered in Rojnamcha Exhibit P/25 and the secret information (Exhibit P/1) was sent to S.P., Chittorgarh vide dispatch No. 5171 -72 through Constable Thawar Chand (PW.8), who after handing -over the same to the S.P. and Dy.S.P. Circle Chittorgarh, obtained carbon copy of the same, which is Exhibit P/11. Ambalal (PW.18) on the basis of the secret information started from police station along with Babulal ASI, Satya Narayan ASI, Bhagwanlal HC No. 560, Satya Narain Constable No. 1278, Devendra Singh Constable No. 735 and Prema Ram Constable No. 271 for Nakabandi. Motbirs were also intimated about the said information, who in the present case are Ramavtar (PW.9) and Jagdish Paliwal (PW.17). 2. During the course of Nakabandi, at about 10:30 AM one black Ambassador car bearing No. RJ -27C -1802 was seen coming from Gambhir river over -bridge which was stopped. The car was stopped and on asking about his name to the driver of the car, he disclosed it as Ramlal s/o Shankerlal. Accused Ramlal was then informed about the secret information and told that there was an information that there was opium in his car and for that search was to be undertaken. The accused was given notice Exhibit P/14 under Section 50 of the Act and was asked whether he wanted the search to be taken by a Magistrate or a gazetted officer or to the police officials and in turn he showed his willingness to give search to Ambalal (PW.18). The accused also agreed for the search of his car by Ambalal (PW.18). Before search, on account of paucity of time, though warrant was not obtained as required under Section 42 of the Act, a memo Exhibit P/13 was prepared mentioning reasons therein for not obtaining the same. PW.18 Ambalal, thereafter gave his search to the Motbir witnesses. Search of remaining police personnel of raiding party was also taken by the Motbir witnesses. After that when the car was searched, nothing was found in the car but smell of opium was felt thereby the raiding party. The accused was then asked to open the dashboard of the car and on opening of the same in an empty space a cloth bag was seen which was stitched by needle and thread. On opening the bag, five ragzin bags were found, the mouth of which were tightened by thread and when same were further opened then polythene bags were found therein and when those black polythene bags were opened, black thick material was found in them. All the five bags contained black thick material. On the basis of smell and touch, the material was found to be opium by the raiding party. Accused Ramlal was asked about the licence for transporting the contraband material. The accused replied that opium was of one Ratanlal, resident of Vijaypur, who got down from the car in the town on the pretext that some purchases were to be made by him. The accused stated that he was owner of the car. The opium was seized and Babulal, ASI was sent for bringing the weight measurements. On weighing the four polythene bags, weight of each polythene bag alongwith recovered material was found to be 4 kgs and 750 gms and weight of fifth bag alongwith recovered material was found to be 6 Kgs and 500 gms. Two samples of 30 gms from each bags were taken and kept in tin boxes. Thereafter, the same were kept in different polythene bags and all the five polythene bags were sealed. The bags were marked -˜A to -˜E and the samples were marked as A -1, A -2, B -1, B -2, C -1, C -2, D -1, D -2 and E -1, E -2. The seizure memo Exhibit -P/15 was prepared and the signatures of the Motbirs and members of the raiding party were obtained. The accused was arrested through memo Exhibit -P/22 and the car found in transporting Opium was seized through seizure memo Exhibit -P/23. The memo of impression of the seal on the samples seized Exhibit -D/4 was prepared, which contains impression of seal. The seal was handed over to one of the Motbirs PW.17 Jagdish in a closed envelope. The memo Exhibit P/16 was prepared of handing -over the seal used at the time of seizure. At about 11:15AM, after returning to the police station, Fard Parcha Exhibit P/27 in relation to offence committed by the accused was prepared and a regular FIR Exhibit P/17 on the basis of Exhibit P/26 was chalked out and a case No. 299/97 under Section 8/18 of the Act was registered against the accused appellant. The recovered opium and samples thereof in the sealed condition were handed -over to Bhagwanlal (PW.16), Malkhana in -charge and the entries were also made in this regard by Bhagwanlal in the Malkhana Register Exhibit P/20. A detailed information under section 57 of the Act was sent to the SP and Dy SP, Chittorgarh, carbon copy of the same is Exhibit P/28. The samples were sent for examination in the FSL and the report Exhibit P/29 was received. In the FSL report Exhibit P/29, the samples sent for examination after examination gave positive test for the presence of chief constituents of coagulated juice of opium poppy.
(3.) AFTER investigation, police filed challan against accused appellant and also against four persons namely Ratanlal Mali, Onkarlal Regar, Ratanlal Khatik and Ramchandra Kumhar. Against Ramlal and co -accused Ratanlal Mali charge -sheet was filed under Section 299 Cr.P.C. The case came up for trial before learned Special Judge, NDPS Cases, Chittorgarh, whereafter hearing both sides, charges were framed against the appellant for the offence under Section 8/18 and under Section 8/29 of the Act against co -accused Onkarlal Regar, Ramlal Khatik and Ramchandra. As the accused denied the charges and claimed trial, the prosecution produced as many as 20 witnesses in support of its case and got exhibited 38 documents (Exhibit -P/1 to Exhibit -P/38).;