NARENDRA KUMAR JAIN,J. - (1.) The Special Judge, N.D.P.S. Act Cases, Alwar, Since its judgment and order dated 7th of January, 2002, in Criminal Case No. 5/2000, convicted and sentenced accused-appellant Jharu Khan S/o Sumer Khan, under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the 'NDPS Act') to ten years rigorous imprisonment and a fine of rupees one lac; in default of payment of fine, to further undergo one year's rigorous imprisonment. Being aggrieved with the same, the present appeal has been preferred before this Court under section 374(2) of the Code of Criminal Procedure.
(2.) Briefly stated the facts of the case are that PW-1 Triloki Nath, the S.H.O., Police Station Sadar, Alwar, received a secret information from one informer on 7th of August, 2000, at 11.35 AM, that Juharu Khan S/o Sumer Khan Mev, Resident of Ghasoli, Police Station Kishangarhbas, will go on his motorcycle No. RJ-02-4M-5703 of red colour Suzuki MAX-R-100, to supply opium at Alwar. The said information was reduced in writing vide Exhibit P-1 and a copy of the same was forwarded to the Superintendent of Police and an information in this regard was also given to the Circle Officer Shri Ram Murti. He thereafter proceeded in accordance with law in respect of the information received by him, and for that he directed Shri Sanwal Singh, A.S.I., vide Exhibit P-3 to bring two independent witnesses. PW-12 Sanwal Singh brought two independent witnesses, namely, Sheoraj (PW-8) and Tansen (PW-9). Thereafter, as per the information, PW-1 Triloki Nath, caught hold of the accused Juharu Khan and gave him a notice (Exhibit P-4) about his search before the Judicial Magistrate or before any Gazetted Officer. The accused gave his consent (Exhibit P-5) to make his search before the Sub Divisional Magistrate, Alwar. Exhibit P-6 and Exhibit P-7 are the notices under Section 160 Cr.P.C., which were given to independent, witnesses, namely, Sheoraj (PW-8) and Tansen (PW-9), to remain present at the time of search and seizure of the contraband from the possession of the accused. Vide Exhibit P-9, the recovery-memo, PW-1 Triloki Nath recovered contraband i.e. opium, weighing 5 kilogram from the possession of the accused in the presence of witnesses PW-8 Sheoraj, PW-9 Tansen and PW-7 lqbal Khan, the Sub Divisional Magistrate. Two samples of hundred grams each were also taken and sealed and the same were sent for chemical examination. As per the report dated 4th of December, 2000, (Exhibit P-23), given by the State Forensic Science Laboratory, Rajasthan, Jaipur, it was opined that on chemical examination the sample contained in packet (marked 'A') gave positive tests for the presence of chief constituents of coagulated juice of opium poppy having 1.90% (One point nine zero percent morphine).
(3.) After completion of investigation, the police filed a challan against the accused.;