JAIN, J. - (1.) THIS appeal, on behalf of the accused Suraj Mal @ Surjya S/o Shri Phool Chand, is directed against the judgment and order dated 19. 7. 2001 passed by the Special Judge, Narcotics Drugs & Psychotropic Substances Cases, Jhalawar, in Sessions Case No. 29/2000, whereby he convicted the accused-appellant for the offence under Section 8/21 of the Narcotics Drugs & Psychotropic Substances Act, 1985 (for short, `the Act') and sentenced him to 10 years rigorous imprisonment and a fine of Rs. 1,00,000/-; in default of payment of fine, to further undergo one year's additional rigorous imprisonment.
(2.) BRIEFLY stated the facts relevant for disposal of this appeal are that PW-8 Pradeep Kumar, S. H. O. , Police Station, Bhawanimandi, received a secret information on 11th August 2000 at about 11. 00 P. M. on telephone from one informer that there is a house of Surajmal Meena at Mandvi Road, Tagar Mohallah, Bhawanimandi and he has smack in his possession and he will go to Kota in night by `janta Express' to dispose of the contraband. The said information was reduced by him in writing vide Exhibit P-13 and the information was sent to Superintendent of Police, Additional Superintendent of Police, Jhalawar and Circle Officer, Bhawanimandi, through wireless (Exhibit P-14 ). Thereafter he proceeded from the police station at 11. 20 P. M. with Yashwant Singh, S. I. , Dadam Chand, Ghanshyam and Ramesh Chand, Constable, with investigation kit. He reached at the residential house of Surajmal as per information of informer. Thereafter he directed the constable Dadam Chand vide written order (Exhibit P-9) dated 11. 8. 2000 at 11. 30 P. M. , to bring two local inhabitants as independent witnesses to attend and witness the search. However, PW-4 Dadam Chand gave his report at 11. 45 P. M. that no one is available because of night and all persons are sleeping in their houses. He knocked the doors of many houses but no one opened the door. Thereafter PW-8 Pradeep Kumar directed Yashwant Singh, S. I. , and Ramesh Chand, Constable, to witness the search. They knocked the door of house of Surajmal. One person came out of house, who, on asking, disclosed his name as Surajmal. He was told by them that they have information about possession of contraband by him in his house, therefore, they would like to search the house. The house was searched and from one trouser of the accused the contraband smack weighing 55 gram was recovered. Two samples of five gram each were taken and sealed in polythene bags. The recovery memo (Exhibit P-10) was prepared by PW-8 Pradeep Kumar, S. H. O. , Bhawanimandi, and accused was arrested. Thereafter the case was handed over for investigation to PW-2 Madan Lal, S. H. O. , Police Station Mishroli, District Jhalawar, who, after investigation of the case, submitted a charge-sheet against the accused for the offence under Section 8/21 of the Act. The Trial Court framed charge against the accused for the offence under Section 8/21 of the Act. The accused denied the charge and claimed to be tried. The prosecution examined eight witnesses and produced documentary evidence Exhibit P-1 to Exhibit P-21. Thereafter the statement of accused was recorded under Section 313 Cr. P. C. wherein he stated that he is not concerned with the trouser and the house from where the contraband has been recovered. He stated that no recovery of contraband was made from his possession. He also stated that he was called at police station and his signatures were obtained there. He has been falsely implicated in the case at the instance of his enemies. He also stated that he was not given any option. No evidence was adduced in defence. The learned Trial Court, after hearing both the parties, convicted and sentenced the accused-appellant, as mentioned above. The learned counsel for the accused-appellant contended that PW-8 Pradeep Kumar did not obtain any warrant of search from the Magistrate in the present case nor he recorded any reasons, as required by proviso to sub-section (1) of Section 42 of the Act, that he has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender. It was further contended that although the search should have been conducted after obtaining the warrant for search from a Magistrate but if the officer had reason to believe that obtaining of warrant is not possible then it was necessary for him to record the reasons of his belief as it was a case of search between sunset and sunrise. He also contended that from Exhibit P-9 it is clear that independent witnesses were not called in the present case. PW-9 Pradeep Kumar directed PW-4 Dadam Chand to bring two local inhabitants to attend and witness the search and seizure. PW-4 did not make any effort and reported that he knocked the doors of many houses but no one opened the doors as it was night. Thereafter no further efforts were made by PW-8 Pradeep Kumar to call two independent and respectable inhabitants of the locality concerned to attend and witness the search and seizure. He contended that in absence of independent witnesses the case of the accused has been prejudiced. The learned counsel for the accused-appellant also contended that the seal used in sealing the sample was not forwarded to Forensic Science Laboratory (for short, `fsl') and it has prejudiced the case of the accused for the reasons that there is variance in the weigh of the sample received by the FSL. The sample weighing 5 gram was sealed vide recovery memo (Exhibit P- 10) whereas FSL Report (Exhibit P-21) shows that the sample was weighing 5. 190 grams. He further contended that in the recovery memo there is a reference that the contraband was of light brown colour whereas FSL report shows that contraband was of dark brown colour.
(3.) THE learned counsel for the accused-appellant further contended that the prosecution failed to prove the exclusive possession of the accused of the house and no documentary evidence showing his ownership of the house has been produced on the record. He also contended that the case property was not produced in the case so as to identify the same by the prosecution witnesses. He, therefore, contended that in view of the above submissions it is clear that the prosecution has failed to prove the case against accused-appellant beyond all reasonable doubts and he is entitled to get the benefit of doubt. The learned Public Prosecutor contended that the learned Trial Court has considered the oral and documentary evidence and has rightly convicted and sentenced the accused-appellant, therefore, no interference is required to be made in the impugned judgment of the Trial Court and the appeal of the accused- appellant be dismissed. I have considered the rival submissions and minutely scanned the impugned judgment as well as the record of the Trial Court. ;