PRASHANT KUMAR AGARWAL,J. - (1.) The accused-appellants have filed these two separate criminal appeals under Section 374 Cr.P.C. against the judgment of conviction and order of sentence dated 26.3.2011 passed by the Special Judge, NDPS Cases, Jhalawar in Sessions Case No.26/2009 whereby learned trial Court convicted the appellants-Shri Ramswaroop and Shri Chauth Mal for offence under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as "the Act") and sentenced each of them to undergo rigorous imprisonment for ten years and imposed fine of Rs. One lac and in default thereof to further undergo simple imprisonment for one year whereas appellants-Shri Bal Chand and Shri Mohan Lal were convicted for offence under Section 8/29 of the Act and both of them were also similarly sentenced. As both these appeals arise out of the same judgment and order, with the consent of learned counsel for the parties, they were heard together and are being decided by this common judgment and order.
(2.) As per the prosecution case, brief relevant facts for the disposal of these appeals are that on 14.4.2009 during "Nakabandi" at Sunel Tiraha within the jurisdiction of Police Station Jhalrapatan when truck bearing registration RJ-20-G-6571 was intercepted at 6.30 a.m. by the then Incharge-Shri Suraj Singh of aforesaid police station, appellant-Shri Chauth Mal was found on the driver seat whereas appellant-Shri Ramswaroop was sitting along with him in the cabin of the truck whereas four other persons were also occupant of the said vehicle and suspicion being aroused that the truck may be carrying some contraband, on search being made narcotic drug "Doda Chura" total weight 101 Kg. was found contained in six bags without any valid licence or permit. As at the spot weighing machine was not available, the aforesaid vehicle along with appellants-Shri Ramswaroop and Shri Chauth Mal and four other persons found sitted in the vehicle were brought by the police party to the police station where the recovered narcotic drug was weighed. As per prosecution case 250 gms. of the substance was taken from each of the bag as sample and the same was sealed and the remaining substance was also sealed accordingly. During the course of investigation information under Section 27 of the Evidence Act having been provided by appellants-Shri Ramswaroop and Shri Chauth Mal to the effect that the recovered narcotic drug (Doda-Chura) was obtained by them from appellants-Shri Bal Chand and Shri Mohan Lal, their respective house was searched and finding them also involved in the incident they were also arrested. After usual investigation charge-sheet for offence under Section 8/15 was filed against appellants-Shri Ramswaroop and Shri Chauth Mal and for offence under Section 8/29 of the Act against Shri Bal Chand and Shri Mohan Lal and in order to prove the charge during trial prosecution produced oral as well as documentary evidence whereas each of the accused-appellant in his statement recorded under Section 313 Cr.P.C. denied the prosecution evidence and specifically stated that he has falsely been implicated and in defence produced one Shri Chhitarlal as DW1. Learned trial Court after considering the submissions made on behalf of the respective parties and appreciating and evaluating the evidence made available on record, convicted and sentenced the appellants as already stated. Feeling aggrieved, the appellants are before this Court by way of these two separate appeals. During the course of hearing of these appeals learned counsel for appellant-Shri Mohan Lal stated that he has died during pendency of his appeal. S.B. Criminal Appeal No.581 of 2011.
(3.) In support of this appeal learned counsel for the appellants first of all submitted that from the evidence available on record and more particularly from the admissions made by the material prosecution witnesses it is clear that no proper efforts were made and steps were taken by Shri Suraj Singh recovery officer to associate two independent public witnesses in the alleged search and recovery proceedings and in absence thereof recovery of alleged narcotic drug only in presence of police personnel who were members of the police party becomes entirely suspect and appellants are liable to be acquitted on that account only but learned trial Court did not consider this aspect of the matter in a right perspective. It was submitted that the place, where the aforesaid truck was intercepted and searched, is a "Tiraha" where admittedly vehicles ply regularly and nearby a small village and temple etc. are also situated but even then public witnesses were not associated.;