SHIV KUMAR SHARMA.J. - (1.) THE appellant was the accused in Sessions Case No. 751 of 1994 on the file of the learned Special Judge. NDPS Cases and Additional Sessions Judge No.1, Kota. He was found guilty under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act. 1985 (for short the Act) convicted thereunder and sentenced to 10 years rigorous imprisonment and fine of Rs. 1.00.000/ - (in default of payment of fine to further undergo two years R.I.)
(2.) AGGRIEVED by the conviction and sentence the action for filing the instant appeal has been resorted to. I have considered rival contentions and scanned the record. On the fateful day of July 3. 1994 at about 1.30 p.m. the accused appellant (in short the accused) was arrested under Section 8/21 of the Act. The allegation was that he was in illegal possession of 4 gms and 910 mili grams of smack. Charge sheet was filed against the accused. The accused denied the charge and claimed trial. Prosecution examined as many as eight witnesses. In the statement recorded under Section 313. Cr. P.C. the accused stated that he was falsely implicated by the police personals. He was motor cycle mechanic. When he refused to impart honarary service in connection with the repair of Motor Cycles of police personals he was framed and the smack was planted on him by the police.
(3.) BEFORE proceeding further following undisputed facts need be noticed: (a) Search was not effected in the presence of independent witnesses. P.W. l - Radha Kishan states that he made attempt to search the independent witnesses but could not find. (b) The place where the accused was searched and arrested in the afternoon of July 3, 1994 was a busy thoroughfare. P.W. 5 Mahendra Singh Constable states in his cross examination that (c) Accused was searched by S.H.O. Rajendra Ozha (P.W. 8) in the presence of Satish Khurana C.O. (P.W. 6). The accused was informed that if he so wished he could be searched in the presence of Gazetted Officer or Magistrate but the accused agreed to be searched in the presence of Satish Khurana who himself reached at the spot in being informed by Rajendra Ozha. (d) Site plan of the occurrence was not prepared. ;