Mahesh Chandra Sharma, J. - (1.) The appellant Sanwar Ram filed this appeal against the judgment dated July 16, 2004 of Special Judge Narcotic Drugs and Psychotropic Substances Act Cases, Ajmer in Sessions Case No. 27 of 2003 convicting and sentencing the accused appellant under section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to undergo 11 years' RI and pay a fine of Rs. 1.00 lakh and in default of payment of fine to further undergo Three years' RI.
(2.) Brief facts of the case are that on May 29, at 11.30 a.m. Chenaram Sub Inspector, Incharge Police Station (PW.4) received information from an informant that Truck No.RJ 19 G 3115 coming from Bhilwara which is being plied by Driver Sanwarram is containing full of crushed capsule of opium poppy. Information was recorded by the SI in Ex. P.9, reads as under : ...[VERNACULAR TEXT OMITTED]... At 11.30 a.m. Incharge Police Station Nasirabad Sadar (Ajmer) sent the information under section 42 NDPS Act (Ex.P.10) to the Superintendent of Police Ajmer on May 29, 2003 at 11.30 a.m. Same reads as under : ...[VERNACULAR TEXT OMITTED]... Copy of it was also sent to the Addl. S.P.(R) Ajmer. Thereafter SI alongwith police constables proceeded to Byepass Magari. At Byepass Magri SI, gave notice Ex. P.1 to Bhanwar lal Head Constable (PW.3) to bring independent witnesses. Bhanwarlal (PW.3) brought witnesses Umrao Singh (PW.1) and Jagdish Singh (PW.2) who gave consent for becoming witnesses. He alerted guards to stop entry of vehicles coming from the side of Bhilwara. Truck driver on seeing the stopping of entry of vehicles moved the truck back and he was stopped at some distance. One person from the truck ran away and the driver of the truck disclosed his name Sanwarram. SI Chenaram (PW.4) gave notice Ex. P.3 to Sanwarram of section 50 of NDPS Act and asked him whether he is interested for searching his vehicle by a Magistrate or a Gazetted officer. Notice Ex. P.3 reads as under : Head Constable Bhanwar Lal (PW.3) was sent in a Govt. Jeep to Nasirabad. Bhanwarlal (PW.3) brought Sharavan Lal Gurjar, Tehsildar (PW.8). Sharavan Lal Gurjar was introduced to Sanwarram and he gave his consent Ex. P.2 for search by him. Extracted portion of consent reads as under : On Ex. P.2 Sanwarram put his signature at place G to H. E to F is signature of Jagdish Singh witness and A to B is signature of Umrao Singh and Sarvanlal Tehsildar put his signature at place I to J. In the Truck 59 Gunny Bags full with Capsule of Poppy were found. Chenaram PW.4 sent Sohanlal Constable to bring weighing material. Ratanlal (PW.6) and Gopal (PW.7) came with weighing material. On weighing Gunny Bags total weight 2341.500 Kgs. were found. From 10 seized Gunny Bags 1 kg. two samples each were collected and all were marked A 1 to A 20. All these Gunny Bags were also sealed and marked as B l to B 10. Rest of the Gunny Bags were also sealed and marked as B 11 to B 59. The seizure memo of seized material is Ex. P.4. Accused Sanwarram was arrested and his truck was also seized. Sanwarram was arrested vide arrest memo Ex. P.6 and Truck was seized vide seizure memo Ex. P.6. At the time of arrest the accused Sanwarram was searched and from his pocket Rs. 3115 were recovered with one notice under section 50 of the NDPS Act. PW.4 Chenaram on reaching Police Station, deposited the recovered material. Report about it is Ex. P.11 and FIR Ex. P.12 was chalked out. Information under section 57 of the NDPS Act was sent to the higher police officers vide Ex. P.16. PW.9 Laxminarain Constable took samples to FSL on June 4, 2003 along with forwarding letter of SP Ex.P.21. SP Ajmer sent letter Ex. P.22 . After depositing the sampels to FSL, FSL gave receipt Ex. P.20 and after examination of samples sent the report Ex. P.31. After completion of investigation, the police filed challan against the accused appellant under section 8/ 15 NDPS Act. The case was registered as Sessions Case No. 27 of 2003 State v. Sanwarram in the court of Special Judge NDPS Cases Ajmer. The Special Judge charged the accused under section 8/15 of the NDPS Act. The accused denied the charge and claimed to be tried. The prosecution examined 11 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 was servant (Khalasi) in Truck No. RJ 19 G 3115. Truck driver filled up Bags of rice chaff. Truck was stopped near police station and the SI demanded Rs. 1000/- which driver refused to give. On this Chenaram and driver fought with each other and driver ran away and hence this forged case was lodged. In defence he produced two witnesses. After completion of trial, the Special Judge convicted and sentenced the accused appellant vide his judgment dated July 16, 2004 as mentioned above.
(3.) Mr. M.L. Vishnoi, learned counsel appearing for the accused appellant argued that no offence under section 8/15 of the NDPS Act is made out against the accused on the evidence produced by the prosecution. The learened counsel averred that the independent witnesses PW.1 Umrao Singh and PW.2 Jagdish Singh, who were motbirs were declared hostile and hence in the absence of proof of narcotic drug recovered from the accused appellant, the jdugment of conviction is liable to be set aside. The provisions of section 42 of the NDSPS Act have not been complied with. PW.6 Ratan Lal and PW.7 Gopal, who weighed the material loaded in the truck but both these witnesses did not support the prosecution case and both of them have been declared hostile. In these circumstances, the case of the prosecution cannot be believed and it is concocted case. The independent witnesses produced by the prosecution have all been declared hostile and the accused appellant should not be convicted on the basis of evidence of one department only. The material sealed was not resealed at the police station and hence the provisions of sections 55 and 57 of the NDPS Act has not been complied with and thus the judgment of conviction and sentence is liable to be set aside. Sanwarram was only servant (Khalasi)and not driver and he was not knowing about the narcotic drug loaded in the truck and thus he is entitled to be acquitted. Chenaram was not SHO Police Station and he was only Incharge and thus he was not authorised under section 42 of the NDPS Act to proceed and thus the whole proceedings are liable to be quashed. The samples placed in the malkhana were tempered and thus the same could not be handed over to the FSL in sealed condition and thus the whole proceedings is liable to be set aside. The defence witnesses produced by the accused appellant proved before the court that accused appellant Sanwarram was not the driver of the truck as he was not knowing driving and he was simply servant (Khalasi) and he has been falsely implicated in the case. In support of his contentions, the learned counsel for the appellant relied upon the cases reported in Noor Aga v. State of Punjab and anr. 2008 R.Cr.D. 592 (SC) Jitendra and anr. v. State of M.P. (2003-04 Cr.L.r. (SC) Supp.) 699 , Gaunter Edwin Kircher v. State of Goa (1993 SCC (Cr.) 803) Rohtas v. State of Rajasthan 2006 (1) R.Cr.D. 376 (Raj.) , Guneshgar v. State of Rajasthan (S.B.Cr. Appeal No. 715 of 2006 decided on August 7, 2008 at Jopdhpur), State of Rajasthan v. Daulat Ram 1980 Cr.L.R. (SC) 84 , State of Rajasthan v. Gurmait Singh 2005 R.Cr.D. (SC) 554) , Bhanwar lal v. State (S.B.Cr. Appeal No. 481 of 2001 decided on October 17, 2005 at Jodhpur), Kailash Chandra v. State of Rajasthan (S.B.Criminal Appeal No. 921 of 2003 decided on July 24, 2008 at Jodhpur) and State of Rajasthan v. Gurmail Singh 2005 (3) SRJ 422).;