Mahesh Chandra Sharma, J. - (1.) The appellant Meer Singh filed this appeal against the judgment dated 20.9.2003 of Special Judge, Narcotic Drugs and Psychotropic Substances Act Cases, Jhunjhunu whereby he has been convicted and sentenced under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to undergo 10 years' RI and pay a fine of Rs.1.00 lakh and in default of payment of fine to further undergo Two years' RI.
(2.) Brief facts of the case are that on 30.6.1999 at about 8.30 p.m. Prem Prakash Chauhan, Circle Officer, Chirawa lodged a written report at Police Station Surajgarh Distt, Jhunjhunu alleging that on 30.6.1999 at about 12.30 noon Vinod Kumar Sharma, Commercial Taxes Officer Jhunjhunu during checking at Pipli Check Post on Loharu Pilani Road intercepted Truck No. RJ 18 P 0656 on which he was shown Bilty of Salt and Bill which were prepared for Kuchaman City to Khairthal for Haryana. On suspicion, the driver of the Truck was asked to get the loaded goods of the truck checked. On cursory check by the staff it was suspected that there were other goods, than declared. Thereupon the loaded truck was detained for physical verification. During the intervening period a wireless information was received from Deputy Superintendent of Police Chirawa through the staff of Police Check Post Pipli that the Truck No. RJ 18 P 0656 be detained. Thereafter at about 1.30 p.m. SHO Pilani Dy. S.P. Chirawa and Tehsildar Chirawa alongwith staff arrived at the check post and disclosed definite information regarding there being goods connected with Narcotic drugs, objectionable goods. A search of the said vehicle was made by Tehsildar Chirawa in the presence of witnesses. On search, besides the declared goods, 71 bags of Poppy husks were found in the truck which were seized. The truck driver Meer Singh was arrested, Site map was prepared and the case was registered at Police Station Surajgarh District Jhunjhunu under Section 8/15 N.D.P.S. Act vide, F.I.R. No. 120 of 1999. After completion of investigation, the police filed challan against the appellant under Section 8/15 N.D.P.S. Act, in the Court of Sessions Judge Jhunjhunu. The case was registered as Sessions Case No. 168 of 1999 State v Meer Singh in the Court of Special Judge N.D.P.S. Cases Jhunjhunu. The special Judge charged the accused under; Section 8/15 of the N.D.P.S. Act. The accused denied the charge and claimed to be tried. The prosecution examined 15 witnesses in support of its case. The accused appellant was examined under Section 313 Cr.P.C. The appellant in his statement stated that he did not know about the truck. He was not the driver of the said truck. He also stated that he was not with the truck, but was called later on. He was arrested after calling him from his house. After completion of trial, the Special Judge convicted and sentenced the accused appellant vide his judgment dated 20.9.2003 as mentioned above.
(3.) Mr. Rinesh Gupta, learned counsel appearing for the accused appellant argued that no offence under Section 6715 of the N.D.P.S. Act is made out against the accused on the evidence produced by the prosecution. The prosecution witnesses on which the entire prosecution case hinges are highly interested witnesses and testimony of these witnesses is not corroborated from independent source. There is no cogent and reliable evidence on record to establish beyond doubt that the accused appellant was the driver of the alleged Truck No. RJ 18 P 0656 when it was Intercepted by Vinod Kumar Sharma, CTO, Jhunjhunu on 30.6.1999 at about 12.30 p.m. at Pipli Check Post. The prosecution miserably failed to prove that the recovered gunny bags of Poppy husk were in the exclusive and conscious possessions of the accused appellant and he had knowledge of the same. Notice under Section 133 of the Motor Vehicles Act was neither given to the owner nor to the accused to ascertain the ownership of the truck and as to who were the driver at that point of time. There are material contradictions, inconsistencies and unnaturalities in the statements of prosecution, witness produced by the prosecution. The prosecution failed to prove link between the accused and the goods allegedly recovered from the truck. Many connecting links are missing from the chain of prosecution case. The police officials never tried to procure the presence of independent witnesses at the time of search and seizure except PW6 Man Singh but he also did not support the prosecution case and turned hostile. Investigation was kept pending under Section 173(8) Cr.P.C. against Shiv Kumar and his brothers Subhash, Anil and Jai Singh residents of Derawala who were owners of the truck in question. There is non compliance of the provisions of Sections 42, 50 and 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985. These provisions are mandatory in nature and non compliance of these provisions vitiates the whole tried. The seal used in the case was not kept in safe custody. Malkhana Incharge has not been examined with his register; The learned counsel argued that the accused appellant has been falsely implicated in the case. In support of his contentions, the learned counsel for the appellant relied upon the cases reported in Gurucharan Singh v. Mahendra Lalwani, Bhaiyan @Shiv Murti; Jitendra and another 0. State of M.P. and Kanhai Mishra@ Kanhaiya Misar v. State of Bihar.;