SANDEEP MEHTA,J. - (1.) By way of this appeal the appellant Mahendra @ Banti seeks to assail legality and validity of the judgment dated 12.12.2015 passed by learned Special Judge, N.D.P.S. Cases, Jodhpur in Sessions Case No. 21/2009 whereby the learned Special Judge convicted him for the offence under Section 8/18 of the N.D.P.S. Act and sentenced him to 12 years R.I. and a fine of Rs. 1,00,000/-; in default of payment of fine, the accused appellant was further directed to undergo additional rigorous imprisonment for one year.
(2.) Briefly stated the facts relevant and essential for decision of the appeal are noted herein below:- As per the prosecution case, the appellant herein had been taken in custody by officers of Police Station Chopasni Housing Board, Jodhpur on 11.12.2008 in connection with F.I.R. No. 336 dated 10.12.2008 registered for the offence under Section 489A, 489C IPC and 3/25 of the Arms Act. He allegedly gave an information to the Circle Officer Mr. Pushpendra Singh, P.W.4 that he had placed opium weighing 7.5 Kgs. in two poly bags packed in one bag in a room at the first floor of his house situated on the road going from HUDCO T Crossing to Blind School. The said information was treated to be reliable and a gist thereof was forwarded to the Supdt. of Police, Jodhpur as per Section 42 of the N.D.P.S. Act. The Circle Officer thereafter took the appellant to the Police Station Pratap Nagar; formed a team of police officers and proceeded to the house where the opium was allegedly concealed. Two independent Motbirs viz. Chetan Ram and Prem Singh were summoned to associate in the search. The Police Party led by the Circle Officer reached the House No. 29 located above Jumbh Sagar Dairy. The door of the house was opened and the accused allegedly led the police party to a room on the first floor thereof. An almirah placed in the room was opened on pointing out of the accused who took out a millitary patterned bag concealed therein under a quilt and presented it to the C.O. The bag was opened and searched in presence of the Panch witnesses and it was found to contain two plastic bags in which thick blackish substance was packed which tasted and smelt like opium milk. Upon weighing, the two poly bags were found to contain 3.220 Kgs. and 4.280 Kgs. of contraband opium milk respectively. The accused could not produce any licence or permit for possessing the opium. Two samples of 30gms. each were taken out from the poly bags containing suspected contraband opium and were sealed and Chits appended thereupon. The remainant contraband was tied up in the same plastic bags and placed in the military coloured bag which was sealed inside a white coloured cloth bag. The C.O., along with the police party and the accused thereafter proceeded to P.S. Pratap Nagar where F.I.R. No. 437/2008 was registered for the offence under Section 8/18 of the N.D.P.S. Act. During the course of investigation, Bhanwar Lal and Mohan Lal being the brothers of the appellant herein who were also present at the place of recovery when the seizure was made were also arrested. After investigation, charge-sheet was filed against the three accused persons i.e. Mahendra @ Banti, Bhanwar Lal and Mohan Lal. The trial court proceeded to frame the following charge against the accused appellant:- ...[VERNACULAR TEXT OMITTED]...
(3.) Exactly identical charge with change of names was framed against the co-accused Bhanwar Lal and Mohan Lal. The most significant fact spelt out from the language of the charge is that all the three brothers including the appellant herein were specifically alleged to be in joint possession of the room from which the bag containing opium was recovered.;