- (1.) HON'ble RATHORE, J.- The present criminal appeal is directed against the impugned judgment dated 5. 2. 2005 passed by the Additional Sessions Judge, Beawar, whereby the accused-appellants have been convicted under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act of 1985') and sentenced to undergo rigorous imprisonment for 10 years with a fine of Rs. 1,00,000/- each, in default of payment of fine to further undergo rigorous imprisonment for one year each.
(2.) BRIEFLY stated that facts of the case are that on 3. 6. 2003 at about 10. 00 p. m. , Durga Prasad, ASI along with police party of Police Station Beawar was on patrolling as per the direction of the Superintendent of Police. He carried out `nakabandi' near Chungi-Naka of Masuda Road, Ajmer. During `nakabandi', they were informed by the Police Station Beawar City on wireless that one truck bearing No. RJ-19/g-3381 is coming from the side of Ashapura Temple carrying some bags containing contraband in it. On the basis of the above information, the police party tried to stop the truck but the driver did not stop the truck. Thereafter Shri Radhey Shyam Bhatt, SI followed the truck in the jeep and at about 11. 15 p. m. the said truck was intercepted and stopped by the police party, wherein 3 persons were sitting. Upon asking, they disclosed their names as Hariram S/o Dhannaram, Babulal S/o Chhogarm and Kishnaram S/o Sukhram, R/o- Artiya Khurd, Police Station Bhopalgarh, District Jodhpur. Two independent Motbirs were called before whom search of the truck was conducted. Upon search, 81 bags containing opium doda were recovered. Necessary recovery memo and other documents relating to search were prepared at the spot and all the accused persons found in the truck were arrested and the truck was seized and investigation commenced. During investigation, the statements of the police party as also of other witnesses were recorded. After completion of the investigation, challan against all the three accused persons was filed in the Court of Additional Sessions Judge, Beawar. The trial Court having gone through the material and evidence collected during investigation and placed before it, framed charges against the accused-appellants for the offence under Section 8/15 of the Act of 1985, who denied the charges and claimed trial. During trial as many as 17 witnesses were examined by the prosecution in support of its case and also got exhibited some documents. The statements of the accused-appellants were recorded under Section 313 Cr. P. C. However, no witness in defence was examined. The Additional Sessions Judge, Beawar vide its impugned judgment dated 5. 2. 2005 having heard rival submissions of the respective parties and after carefully going through the material available on the record, convicted and sentenced the accused-appellants in the manner stated herein above. The impugned judgment dated 5. 2. 2005 has been challenged by the accused-appellants on the ground that there are major contradictions, omissions and improvements in the statements of the prosecution witnesses on the material point and in such circumstances, testimony of these witnesses should not have been relied by the trial Court while passing the impugned judgment of conviction and sentence. It is further alleged that mandatory formalities have also not been completed by the SHO after seizure of the contraband and the truck as envisaged under Section 42 of the Act of 1985. Since the mandatory requirements under Section 42 of the Act of 1985 have not been completed, therefore, the seizure itself is not valid. The main contention of the learned counsel for the accused-appellants is that out of total 81 bags which were seized, only from one bag two samples were taken and sent for FSL report and as per the FSL report, contraband which was observed was less than the commercial quantity and thus, as the accused-appellants have already undergone the sentence of 5 years and 3 months in custody, therefore, in view of the ratio decided by the Hon'ble Supreme Court in the case of E. Micheal Raj. vs. Intelligence Officer, Narocotic Control Bureau, reported in 2008 Cr. L. R. (SC) 401 = 2008 (4) RLW 3549 (SC), the sentence awarded to the accused-appellants deserves to be reduced to the period already undergone by them considering the fact that the quantity of contraband recovered from one bag is observed as less than the commercial quantity as the weight of one bag was 38 kgs.
(3.) LEARNED counsel for the accused-appellant, in support of his submissions, placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Gaunter Edwin Kircher vs. State of Goa, Secretariat Panaji, Goa, reported in 1993 SCC (Cri.) 803, wherein the Hon'ble Supreme Court has observed as under:-      " Narcotic Drugs and Psychotropic Substance Act, 1985 - S. 27, Expln. (1)- `small quantity'- Defined by Central Govt. notification dated November 14, 1985 as quantity of 5 gms or less - Two pieces of charas, one weighing 5 gms. and the other 7 gms, alleged to have been recovered from the possession of appellant- But only the piece weighting 5 gms. sent for chemical analysis- Report of chemical analysis confirming that the piece contained charas- In view of failure to send the alleged piece weighing 7 gms for chemical analysis, held, possession of more than the small quantity of charas not established beyond reasonable doubt- Procedure for sending the substance for chemical analysis indicated- Prevention of Food Adulteration Rules, 1955, Rr. 22 and 22-B-Drugs and Cosmetics, Act, 1940, S. 23. " After placing reliance on the aforesaid judgment, the learned counsel for the accused-appellants further submits that this law is still hold field and has not been overruled as yet and applying the ratio decided by the Hon'ble Supreme Court and in the facts and circumstances of the present case, the accused-appellants are entitled to be released forthwith. Learned counsel for the accused-appellants has given much emphasize that he is not arguing the appeal on merit for acquittal, but arguing on the point that since the contraband recovered from the one bag from which samples were taken, as per the FSL report, is less than the commercial quantity, therefore, in view of the ratio decided by the Hon'ble Supreme Court in the case of Gaunter Edwin Kircher vs. State of Goa, Secretariat Panaji, Goa (supra), and in the case of E. Micheal Raj. vs. Intelligence Officer, Narcotic Control Bureau (supra), the sentence awarded to the accused-appellants be reduced to the period already undergone by them in confinement. ;