JAIN, J. - (1.) ACCUSED appellant Raju Munim @ Rajendra Singh Meena has been convicted and sentenced by the Special Judge, N. D. P. S. Cases, Jhalawar, vide its judgment and order dated 4. 6. 2001, in Sessions Case No. 22/2000, under Section 8/21 of the N. D. P. S. Act, 1985 (for short, `the Act'), to 12 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.) RELEVANT facts, in brief, for disposal of this appeal are that Sub Inspector, Police Station, Bhawanimandi, lodged First Information Report at Police Station Bhawanimandi, on 29. 6. 2000, wherein it was alleged that he received a secret information from one informer and on that basis he reached at Tagar crossing. He directed Constable Ramesh Chand to bring two independent and respectable inhabitants of the concerned locality to attend and witness the search. He found one person of a description as stated by the informer. On asking, he disclosed his name as Raju Munim @ Rajendra S/o Heera Lal. Meanwhile Constable Ramesh Chand came back and told that no inhabitant of the locality is willing to attend and witness the search and seizure against the smuggler. Thereafter he directed two Constables Ram Prasad and Latoor Lal to attend and witness the search and seizure. He apprised the accused with his right about his search either before Magistrate or before Gazetted Officer. The accused gave his consent in writing of his search by him. Thereafter a search was conducted in presence of the witnesses. The contraband `smack', weighing 105 gram with two polythene bags, was recovered from the possession of the accused. 5 Gram smack was taken as estimated weigh of polythene bag. The net weigh of smack was 100 gram. He took two samples of 10 gram each and remaining 80 gram smack was sealed in packet. After investigation of the matter, charge-sheet was submitted in the case against the accused. The case was committed for trial to the Trial Court. The learned Trial Court framed charge against the accused appellant 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-22. Thereafter statement of the accused was recorded under Section 313 Cr. P. C. No evidence, oral or documentary, was produced on behalf of the accused, in defence. The learned Trial Court, after hearing the arguments of both the sides, convicted and sentenced the accused appellant as indicated above. The learned counsel for the accused appellant contended that PW-7 Yashwant Singh was only a Sub Inspector and was not In- charge of the Police Station, therefore, in view of the Notification No. F. 1 (3)FD/ex/85-1, dated 16. 10. 1986, issued by the State of Rajasthan, he was not a person authorized under Section 42 of the Act, therefore, as search and seizure was made in the present case by unauthorized person, therefore, there is a violation of mandatory provisions of Section 42 of the Act. He referred to the decisions of this Court in Bhanwar Lal vs. State of Rajasthan, 1999 Cr. L. R. (Raj.) 708 and Bherulal vs. State of Rajasthan, 2004 (1) Cr. L. R. (Raj.) 612. Learned counsel for the accused appellant further contended that in view of Section 50 of the Act the provisions of sub- section (4) of Section 100 of the Cr. P. C. were applicable in the present case in respect of search and seizure of the contraband and in view of sub-section (4) of Section 100 Cr. P. C. it was the duty of the recovery officer to call independent and respectable witnesses of the concerned locality before proceeding with the search. He contended that in the present case PW-7 Yashwant Singh directed PW-6 Ramesh Chand at 2. 25 PM to bring two inhabitants of the locality but he did not make any sincere effort and made a report at 2. 40 PM i. e. , within fifteen minutes itself that no one is willing to attend and witness the search and seizure. Thereafter PW-7 Yashwant Singh directed two Constables PW-1 Latoor Lal and PW-2 Ram Prasad to attend and witness the search and seizure. Both the witnesses were police officials and cannot be said to be independent witnesses in the case. He also contended that Exhibit P-8, the site plan, shows that the accused was found standing near the office of Excise Department and shops were also situated; the time was 2. 25 PM and even the government servants were available in the office of Excise Department but no request was made either by PW-6 Ramesh Chand or PW-7 Yashwant Singh, to them. He referred to the decisions of the Hon'ble Supreme Court in Narsi vs. State of Haryana, 1998 (4) Crimes 105 (SC); State of Punjab vs. Balbir Singh, (1994) 3 SCC 299, Ram Lal vs. The State of Rajasthan, S. B. Criminal Appeal No. 270/2002, decided by this Court on 28. 2. 2006 and Saudan & Another vs. State of Rajasthan, 2003 (1) RCC 501. Learned counsel for the appellant further contended that this is a case where there is variance in weigh of sample seized vide Exhibit P-3 and the sample sent to the Forensic Science Laboratory (FSL ). As per recovery memo Exhibit P-3 the weigh of sample was 10 gram whereas from Exhibit P-22, the report of FSL, the sample received by the FSL is 9. 783 gram. He further contended that from Exhibit P-3 it is not clear that seal used in sealing the sample of contraband, was sealed and to whom it was given. He referred to the statement of PW-7 Yashwant Singh and the recovery memo Exhibit P-3, wherein it was mentioned that the personal seal of the recovery officer was not available, therefore, contraband was sealed by the seal of Police Station Bhawanimandi. He referred to the decisions in the cases of Najmabano @ Khurshid @ Phoolwall vs. State of M. P. , 1998 (1) EFR 339 and Rajesh Jagdamba Avasthi vs. State of Goa, (2005) 9 SCC 773 = (RLW 2005 (1) SC 177 ).
(3.) HE also contended that the contraband recovered in the present case was not produced in the court, therefore, it could not be identified by the prosecution witnesses nor it could be corroborated by the FSL Report. The contraband was not exhibited in the present case. HE also contended that sample taken in the present case on 29. 6. 2000 was not sent immediately for chemical examination but it was sent to FSL after a delay of 27 days, which is clear from Exhibit P-12, the receipt dated 26. 7. 2000 of FSL. He lastly contended that in case this Court does not agree with his above submissions, then at least the case of accused- appellant for the purpose of reduction of term of sentence of imprisonment be considered. He contended that the accused appellant is in jail since 29. 6. 2000 and has already undergone sentence of imprisonment for about five years and eight months and quantity of contraband recovered in the present case was lesser than the commercial quantity as specified under Section 2 of the Act, vide Notification dated 19. 10. 2001, therefore, in view of lesser quantity of the contraband than the commercial quantity, the benefit of amendment made in the Act in October, 2001 where in such circumstances the maximum sentence is ten years rigorous imprisonment can be extended and sentence of imprisonment in the present case can be reduced to the period of imprisonment of five years and eight months, already undergone by the accused appellant. The learned Public Prosecutor, on the other hand, contended that the contraband smack was recovered from the possession of the appellant. The learned Trial Court has rightly convicted and sentenced the accused appellant after appreciating oral and documentary evidence in the case. ;