JUDGEMENT
Sanjay Kumar Gupta -
(1.)Appellants, Nirmal Singh and Arif Amin Daing, who have been sentenced to suffer rigorous imprisonment of ten years with a fine of Rs.1.00 lac each for the offence under Sections 8/20 NDPS Act vide judgment dated 29.01.2013 by which the appellants have been convicted/sentenced by the learned Sessions Judge, Udhampur, have filed the present appeal. Feeling aggrieved of the impugned judgment, appellants have prayed for setting aside of the conviction and sentence so passed against them on the following grounds:
a) That the judgment impugned is against the law and facts of the case and as such requires to be set aside.
b) That the court below has not appreciated the evidence in its right perspective and as such, fallen into grave error of law by holding the appellant guilty of committing aforementioned offence.
c) That the very search of the appellants and their truck was illegal and against mandate of law without adopting the mandatory procedure as prescribed under law.
d) That the mandatory procedure as prescribed under Section 42 of NDPS Act, has not been complied with, therefore, the judgment and order impugned is bad and deserve to be set aside.
e) That the sampling of the seized contraband and sending the same to the FSL are again contrary to procedure prescribed. This clearly shows that the whole case against the appellants has been manipulated as such appellants are required to be acquitted.
f) That there are inherent contradictions which goes to the root of the case thereby demolishing the prosecution story but the court below failed to take the same into account while passing the judgment impugned. Therefore, judgment impugned is required to be set aside.
g) That the recoveries of contraband are also doubtful which further demolishes the prosecution case.
(2.)Brief facts of the case are that on 08.03.2011 at 1510 hours a source information received by Station House Officer of Police Station, Rehmbal Udhampur, was telephonically passed on to Incharge Police Post Tikri, that a Truck bearing registration No.JK02W/0017, being driven by accused No.1 in association with accused No.2 loaded with apple boxes was on its way to Jammu and it was believed that in some boxes Charas was being transported to some unknown destination, SHO directed incharge police post Tikri that he should immediately arrange a naka on the National Highway Jammu Srinagar and take up the investigation of the case. To facilitate investigation copy of FIR was dispatched through selection grade constable Taj Din. On receiving this information from SHO Police Station Rehmbal incharge police post Tikri contacted Naib Tehsildar Tikri on cell No. 9469352427 and requested him to come on spot. A naka was laid by him and the checking of vehicles was started. A photographer PW- Charanjeet Singh was also summoned on spot. In the meantime SGCT Taj Din also reached there alongwith FIR and handed over the same to Incharge police post Tikri. Executive Magistrate Romesh Singh also arrived there and at about 1610 hours the suspected truck No. JK02W/0017 reached the naka point. Both the accused were traveling in the truck. Accused No.1 was driver of the truck and accused No.2 was his associate driver. Both the accused were given option of search and they opted to offer their search in presence of a Magistrate. The truck in question was taken inside police post Tikri because there was not enough space available on National Highway which remains busy round the clock. In the first instance the documents found in the truck were seized. As per the challan the truck was loaded with 353 apple boxes which were unloaded and a thorough search of the apple boxes was conducted. In five boxes 37 packets of Charas were found and in rest of 348 boxes rotten apples were packed. The packets of charas so recovered were weighed in presence of the Magistrate and its weight was found to be 58 kg and 300 grams. The packing material was removed and from these 37 packets 365 balls of Charas were recovered. The balls of charas so recovered weighed 55 kgs and 100 grams and the packing material weighed 3 kgs 200 grams. From all the 365 balls of Charas so recovered sample of 100 grams was extracted which was divided into 2 packets of 50 grams each and both the packets were sealed on spot and marked as A and A1. Remaining Charas weighing 55 kgs was also sealed and marked as B. The packing material was packed separately and marked as C. The packets were sealed by the Magistrate on spot and an authority letter in the name of Director FSL was prepared by the Magistrate on spot. The statements of the witnesses were recorded. 348 apple boxes were given on superdnama of Zahoor Ahmed and the vehicle so seized was given to Hardeep Singh on interim custody as per the court order. After conclusion of the investigation, it came to the fore that accused had loaded the truck on 04.03.11 from Ali Mohammad and Sons Fruit Commission and Forwarding Agents, 83 New Fruit Market, Parimpora Srinagar-17, Kashmir and 353 apple boxes were loaded in the truck. The consignment of the apples was to be delivered at Mumbai to Danesh Chander Gupta, shop No. H653 H669 APMC. Since, the National Highway was closed for traffic so the consignment was temporarily to be delivered to Sanjay Fruit Company Shop No.17-A New Sabzi Mandi Jammu, The accused unloaded five apple boxes from the Truck at Pantha Chowk Srinagar and loaded it with five boxes containing Charas and the accused also managed another challan from the consignor and on 07.03.11 the truck left Srinagar towards Jammu which was ultimately intercepted at Tikri. After conclusion of investigation the accused were found to have committed offence u/s 8/20 of NDPS Act and so the investigation culminated in charge sheet.
(3.)Accordingly, accused were charged for offence under Sections 8/20 NDPS Act. The statements of the accused were recorded. They denied their guilt and claimed trial. The prosecution in support of its case examined PWs Tara Chand, Taj Din, Charanjeet Singh, Mohinder Singh, Rohit Koul, Mohd Altaf Khan, Zahoor Ahmed, Romesh Singh, Raj Kumar Sharma, Ashok Kumar and Padamdev Singh, as witnesses.
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