Staya Prakash Pathak, J. - (1.) These two appeals arise out of judgment of conviction and order of sentence passed by the learned Special Judge, NDPS Act cases, Pratapgarh dated 28.2.2002 in Sessions Case No. 17 of 2000, whereby the accused-Appellants have been convicted under Section 8/18 of the NDPS Act and sentenced to undergo 12 years rigorous imprisonment and to pay a fine of Rs. 1.50 lac., in default thereof to further undergo rigorous imprisonment for a period of 3 years. Since both the appeals have been filed against a common judgment, these appeals are being disposed of by this judgment.
(2.) Brief facts giving rise to the present case may be summarised thus: 1. On 1.4.2000, at about 9 AM, PW13 Kailash Chandra, SHO, Police Station, Chhoti Sadri, the Investigating Officer of the case, received a secret information Ex.P/33A to the effect that from a red coloured Maruti Car, coming from Pratapgarh and approaching towards Chittorgarh, opium could be recovered. 2. PW 13 Kailash Chandra after recording the information, sent it for compliance under Section 42 of the Act . to the S.R Chittor and Additional S.R Pratapgarh. This was taken by Constable PW 9 Narsingh on 1.4.2000. 3. The raiding party consisting of PW 13 Kailash Chandra, ASI Baktharam, PW 6 ASI Gopal Das and PW 3 Bharat Singh, PW 14 Head Constable Sikandar Khan and Constable Shivram and other witnesses made Nakabandi near Pratap Nagar Police Station at about 9.30 AM. 4. As per the secret information Ex.P/33A, a red Maruti car was seen coming, which was stopped by PW 13 Kailash Chandra. In the car, two persons namely Jarnail Singh and one Suresh were found. Accused Jarnail Singh was driving the car whereas accused Suresh was sitting on the back seat of the car. 5. On inquiry being made from accused Jarnail Singh in relation to a brief case, which was lying by his side, it was stated by accused Jarnail Singh that the brief case contained his clothings. 6. The accused were given notice for their personal search and the search of the vehicle, who gave consent for the search and the search was conducted. 7. In the meantime, the Motbirs PW 1 Yudhishtra and PW 2 Ranglal were arranged. 8. On opening the brief case, it was found that there was a double polythene bag beneath the clothes. When it was opened then a black liquid material was found therein, which gave smell of opium and on testing it was found that the same was opium. The polythene bag recovered was weighed. It was of two kgs. Two samples of 50 grams each were taken and two more samples as control samples were also taken. 9. Another accused, who was sitting at the back seat of Maruti, was also searched. Near to him, a brown bag was found. On making inquiry as to what was in the bag, accused Suresh replied that it contained his clothings. On opening the bag, there also a double polythene bag was found and on opening the same it was found to contain black liquid material, which also gave smell of opium and after testing it was found to be opium. The weight of this bag was also two kgs. Two samples of 50 grams each were taken from this material also and necessary marking was done. 10. On further inquiry made form the driver of the car, the driver Jarnail Singh told that still there was contraband material below the mudguard of the car and when mudguard was seen, (t was found that below that there were two polythene bags. The same were opened and were found to contain opium. On weighing, each bag was found of one kilogram. Two samples of 50 grams each were taken from each of the bags and they were marked. 11. On inquiry from accused Suresh Kumar, he also informed that at the backside of the car near the back - light of car there was opium. The back - light was got opened and two polythene bags were recovered from there. After weighing the same, those bags were found to be of one kilogram each. Two samples of 50 grams each were taken from those bags and the recovered material and the samples were seized and sealed then and there. The car was also seized and taken into custody. The accused Jarnail Singh and Suresh Kumar were arrested through Memos Ex.P/7 & P/8 respectively. 12. After completion of seizure of contraband material, accused alongwith car were taken to the police station. Seizure memo Ex.P/4 was prepared between 9.40 AM to 10.50 AM, which contains the signature of the Motbirs and other witnesses and the members of the raiding party. 13. In the Police Station, on the basis of Kayaml Jurm Ex. P/27, a regular FIR P/28 was chalked out. 14. The matter was further investigated by PW 14 Govind Singh, SHO, PS Dholapani, PW 12 Amar Singh, SHO, Pratapgarh and PW 13 Kailash Chandra, SHO, Chhoti Sadari. The samples were sent for chemical examination to the FSL. The FSL report is Ex.P/33 which gave positive opinion of opium.
(3.) After completion of investigation, challan was submitted and the matter came up for trial in due course of time before the learned Special Judge, NDPS Cases, Pratapgarh, who framed charge under Section 8/18 of the NDPS Act against both the accused persons. Accused denied the charges and claimed trial.;