JAIN, J. - (1.) THESE two appeals, one through advocate and another through Superintendent, Central Jail, Kota, have been preferred by accused Sadhu Ram against the judgment and other dated 30. 07. 2002 passed by the District & Sessions Judge, Baran in Sessions Case No. 61/2000 whereby accused appellant has been convicted and sentenced under Section 8/21 of the NDPS Act to 10 years R. I. And a fine of Rs. 1 lac and in default of payment of fine to further undergo 1 year imprisonment.
(2.) PW. 6 Nand Kishore Yadav, S. H. O. , P. S. Kasba Thana, Baran received a secret information on 4. 4. 2000 that one Bus of M. P. Roadways Transportation Corporation is coming from Baran bearing Registration No. 8-D-2760 wherein one person Sadhu Chamar is travelling and he is having smack in his possession. The said information was recorded by him in Ex. P. 13. The said information was sent to superintendent of Police, Baran. The obtaining of warrant from the Court could have taken time, therefore, he came at P. S. Shahbad and with the police party went to stop the bus to search the accused as per information received by him. The necessary steps were taken by him for informing the Circle Officer and for two independent witnesses. The bus was stopped and he asked the Conductor about passengers who were coming from Baran. Three persons were there and as per description of the accused, he caught hold the accused Sadhu. A notice under Section 50 of the NDPS Act was given and he was explained the procedure for search. The Circle Officer who was Gazetted Officer also came. The accused gave his acceptance for his search and thereafter search was made. Three polythene bags having 360 grams smack was found from the possession of the accused. A recovery memo was prepared and FIR No. 28/2000 was registered under Section 8/21 of the NDPS Act. During investigation the accused stated that the smack was given to him by Ravinath Singh and Ravinath Singh stated that it was given to him by Mohd. Rafiq and Mohd. Rafiq stated that it was given to him by Sharif S/o Shakoor Khan. On the basis of this information/statement Mohd. Rafiq, Ravinath Singh and Sharif Mohd. were also arrested. The samples were taken, which were sent for chemical examination. The FSL Report was received. After completion of the investigation a challan was filed against all the 4 accused persons for the offence under Section 8/21 and 8/29 of the NDPS Act. The case was committed and the trial Court framed charge against appellant Sadhu Ram under Section 8/21 and against 3 co-accused persons named above under Section 8/29 of the NDPS Act. All the accused persons denied charge and claimed to be tried. In support of the case, the prosecution examined 13 witnesses and produced documentary evidence. Thereafter statement of the accused persons were recorded under Section 313 Cr. P. C. No evidence was produced in defence. After considering the submission of both the parties, the learned trial Court acquitted the co accused persons namely Mohd. Rafiq, Ravinath Singh and Sharif Mohd. from the offence under Section 8/29 of the NDPS Act but convicted and sentenced the accused appellant under Section 8/21 of the NDPS Act to 10 years R. I. as mentioned above. I have heard the learned counsel for the parties and examined the impugned judgment as well as record of the trial Court.
(3.) THE learned counsel for the accused appellant contended that there were two independent witnesses to the recovery memo Ex. P. 5 and Ex. P. 6 namely Ayub and Badri Prasad and their statements were recorded as PW1 and PW 2 and both the witnesses were declared hostile by the prosecution during trial of the case. So far as statement of S. H. O. and Circle Officer namely Nand Kishore PW-6 and Nand Lal Pawan PW12 are concerned, they were interested witnesses. He contended that in these circumstances where independent witnesses were declared hostile and other witnesses were declared hostile and other witnesses were interested witnesses, the recovery of contraband article was not proved and the learned trial Court committed an illegality in convicting and sentencing the accused appellant. He further contended that Ex. P. 3 notice under Section 50 of the NDPS Act, Ex. P. 4 acceptance of the accused were not in accordance with the provisions of law. THE notice does not contain the reason for search. In Ex. P. 4 the section of the Act was not mentioned. He has referred the statement of PW9 Ram Chander Sharma and PW12 Nand Lal Pawan. he further contended that PW 12 Nand Lal Pawan was a member of raid party, whereas recovery of the contraband article was made in his presence being a gazetted officer and he being a member of raid party, it was not fair and proper on the part of the prosecution agency to make search in his presence. He has also pointed out some contradictions in respect of description of packets of samples on the basis of Ex. P. 26 FSL Report, Ex. P. 19 receipt of FSL Report and the statement of PW 8 Ganga Singh. He further contended that Ex. P. 13 so-called information by secret person was not entered in Rojnamacha and as such the very basis of the prosecution case goes as it creats serious doubt on the prosecution case. He further contended that PW6 Nand Kishore Yadav was S. H. O. of Kasba Thana, Baran whereas the case was relating to the jurisdiction of police station Shahbad and as such he was not competent to make a search and to lodge the report in the matter. THE learned counsel for the accused appellant also contended that vide Ex. P. 5 the sample of contraband article was taken, the weight of each sample was 30 grams whereas weight of sample in FSL report Ex. P. 26 has been mentioned as 30. 694 gram and 31. 203 grams, therefore, there is a variance in the weight of the sample taken and sample sent for FSL report. He has referred Harpal Singh & Anr. vs. State of Rajasthan, 2000 WLC (Raj.) UC, 280. On the other hand the learned P. P. Submitted that in the present case the recovery of contraband article was made by S. H. O. Nand Kishore PW 6, who prepared Ex. P. 5 as well as Ex. P. 6 and he has given his statement before the Court and proved Ex. P. 5 and Ex. P. 6. He further contended that search was made in presence of PW 12 Nandlal Pawan, gazetted officer who was not a member of raid party. He came on the request of SHo Nand Kishore PW 6 PW 12 Nand Lal has given his statement before the Court. PW. 6 and PW 12 both have not been declared hostile and both are responsible officers of the State. There is no reason to disbelieve the testimony of PW 6 and PW 12 who have legally, proved the recovery memo Ex. P. 5 and P. 6. He submits that this is a case wherein 360 grams smack was recovered from the possessions of the accused. He also contended that PW 1 and PW 2 were declared hostile only on technical ground but it does not mean that recovery of the contraband article from the possession of the accused is not proved. He also contended that PW 10 Mahendra Kumar Conductor of the bus was examined in the Court, who was an independent witness and he, not only corroborated the prosecution case but also identified the accused in the Court. Ex. P. 16 bus ticket was also proved by PW. 10 that it was issued to accused. He has also referred the FSL Report Ex. P. 26 wherein on examination the contraband article was found as heroin. He further contended that there was no defect in Ex. P. 3 notice under Section 50 of the NDPS Act and Ex. P. 4 acceptance of accused. The same are in accordance with the provisions of law and on such technical grounds the accused cannot be acquitted. I have considered the submissions of both the learned counsel for the accused as well as the State and examined the record of the trial Court. ;