Narendra Kumar Jain, J. - (1.) These three appeals/leave to appeal relate to First Information Report dated 11.11.1997 in respect of recovery of opium weighing 28 kg. from the residential house of accused Hanuman Sahai, Girdhari Lal and Ashok Kumar, therefore, they are being disposed of by this common judgment.
(2.) A secret information was received by PW-9 Bhishm Dev, Inspector, Office of Superintendent, Narcotics Department, on 10.11.1997 to the effect that Hanuman Sahai Yadav, Girdhari Lal Yadav, both sons of Sohan Lal Yadav, are in possession of 30 kg. opium in their residential house and they are likely to sell it by evening of 11th November, 1997. In case a raid is conducted at their house in the morning of 11th November, 1997, then the contraband can be recovered. The said information was reduced in writing on 10th November, 1997 and a copy thereof was forwarded to the superior officer. A team was constituted under the leadership of Shri R.B. Verma, Superintendent, Central Narcotics Bureau, Jaipur. Two independent witnesses were called and on the basis of secret information the residential house of Hanuman Sahai and Girdhari Lal was raided by the raiding party. The accused Ashok Kumar Yadav son of Hanuman Sahai Yadav opened the door. The raiding party asked Ashok about Hanuman Sahai and Girdhari Lal, but after understanding the situation that a raid party has come to raid their house, both Hanuman Sahai and Girdhari Lal fled from the back door of the house. Thereafter a notice under Section 50 of the N.D.P.S. Act, 1985 was given to Ashok Kumar apprising him about his right to get the house searched either in presence of Magistrate or authorised Gazetted Officer. Ashok Kumar gave a receipt in writing of having received notice and thereafter further gave his acceptance in writing that he is ready to give search of his house in presence of Shri R.B. Verma, Superintendent, a Gazetted Officer. Thereafter search was conducted and total 28 kg. opium was recovered vide recovery memo Exhibit P-2. The statement of Ashok Kumar was recorded under Section 67 of the N.D.RS. Act, 1985 at about 13.00 Hrs. Subsequently he was arrested. On the basis of his information, Suresh Kumar Yadav was also examined and his statement was recorded. The other accused persons Girdhari Lal and Hanuman Sahai could not be searched out and arrested at that time. Three samples of 24 gram, each were taken and sent for chemical examination. As per analysis report, dated 23rd December, 1997, all the three samples were found by qualitative and quantitative analysis to be opium within the meaning of Section 2(XV) of the N.D.P.S. Act, 1985 (for short, 'the Act'). Shri Bhishm Dev, Inspector, Central Narcotics Bureau, Jaipur, filed a criminal complaint against accused Ashok Kumar, Hanuman, Sahai, Girdhari Lal and Suresh Kumar under Section 8 read with Sections 18, 28 and 29 of the Act. The accused persons Girdhari Lal and Hanuman Sahai were declared absconded. Therefore, trial proceeded against accused Ashok Kumar and Suresh Kumar. The trial court framed charge against accused Ashok Kumar under Section 8/18 and against accused Suresh Kumar under Section 8 read with Sections 18, 28 and 29 of the Act. The accused persons denied the charge and claimed to be tried. The prosecution examined nine prosecution witnesses and produced documents Exhibit P-1 to Exhibit P-24. The statements of accused persons were recorded under Section 313 Cr.P.C. In defence, documents Exhibit D-1 to Exhibit D-10 were produced. The trial court, vide its judgment dated 5.9.1999 in Sessions Case No. 5/98, convicted the accused Ashok Kumar under Section 8/18 of the Act and sentenced him to ten years rigorous imprisonment and fine of Rs. 1,00,000/-; in default of payment of fine, to further undergo sentence of two years simple imprisonment. The accused Suresh Kumar Yadav was acquitted of the offence. Being aggrieved with the same, the accused Ashok Kumar has filed S B. Criminal Appeal No. 616/1999 before this Court and, the Department has filed S.B. Criminal Leave to Appeal No. 72/2000 against accused Suresh Kumar Yadav.
(3.) Accused persons Girdhari Lal and Hanuman Sahai surrendered themselves on 11.12.1999 and 22.9.2000 respectively, and thereafter two separate complaints were filed against both of them on 23.3.2000 and 16.12.2000, respectively. The complaints were registered as Case No. 8/2000 and 52/2000. Both complaints were related to one FIR, therefore, vide order dated 17.8.2002, the trial court passed an order for consolidation of both the cases. After completion of trial, the Special Judge, N.D.P.S. Cases, Jaipur, vide its judgment dated 4.11.2003, in Sessions Case No. 52/2000, convicted the accused persons Hanuman Sahai and Girdhari Lal under Section 8/18 and sentenced them to undergo rigorous imprisonment of ten years and a fine of Rs. 1,00,000/- each; in default of payment of fine, to further undergo simple imprisonment of two years. Being aggrieved with the same, the accused Hanuman Sahai and Girdhari Lal have preferred S.B. Criminal Appeal No. 1648/2003.;