JUDGMENT 1. - Heard the learned counsel for the parties. 1. The Special Judge, NDPS Cases, Hindaun City, District Sawai Madhopur has convicted and sentenced the appellant Bhagat Singh as under - Under Section 8/18 NDPS Act - To 20 years R.l. and a fine of Rs. 2,50,000/-, in default of payment of fine of further undergo 3 years R.l. Under Section 8/20 NDPS Act - To 20 years R.I., and a fine of Rs. 2,50,000/-, in default of payment of fine to further undergo 3 years R.l. Both the substantive sentences of imprisonment to run concurrently. 2. The contraband weighing 83.500 Kg. Opium and 150 Kg. Charas were recovered in the present case vide recovery memo Ex.R 15 dated 12.7.97 from the house, as shown in site plan (Ex.R5), which was in exclusive possession of the appellant. 3. On 12.7.97 a secret information (Ex.R27) was received by PW11 Vijay Singh Meena, Superintendent, Narcotics Bureau, Kota to the effect that appellant Bhagat Singh deals in the business of opium and charas and in case the house of Bhagat Singh, which is in his possession, is raided then it could lead to recovery of opium and charas. On the basis of the said information a raid party was formed which went to visit the house in possession of appellant. The appellant was found available at the said house. The notice under Section 50 of the Act was given to the appellant for the search of the said house. Two independent witnesses were called and a search was conducted. The contraband as mentioned above was recovered from the house of the appellant. 4. The Investigating Officer investigated the matter and after receipt of FSL Report and completion of the investigation, a complaint was filed in the Court of Addl. Sessions Judge, Hindaun City, District Sawai Madhopur against 3 accused persons namely Ram Murti, Shiv Kumar @ Shiv Singh and present appellant under Section 8/18, 8/20, 25 and 29 of the Act. 5. The trial Court framed the charge against appellant for the offence under Section 8/18 and 8/20 of the Act, against accused Shiv Kumar @ Shiv Singh for the offence under Section 8/18 of the Act and against co-accused Ram Murti for the offence under Section 25 of the Act. All the accused persons denied the charge and claimed to be tried. All the accused persons denied the charge and claimed to be tried. In support of the case, the prosecution examined 11 witnesses and produced documentary evidence Ex.R1 to Ex.P29. Thereafter statement of the accused persons were recorded under Section 313 Cr.RC. and in defence DW 1 Khubi Ram and DW 2 Bhagat Singh Indolia were examined. 6. During the pendency of the trial co-accused Ram Murti died and as such proceeding was dropped against him on 20.1.2003. The learned trial court after hearing the arguments of both the parties acquitted the co-accused Shiv Kumar @ Shiv Singh from the offence under Section 8/18 of the Act but convicted and sentenced the accused appellant as mentioned above. 7. The learned counsel for the appellant Mr. V.R. Bajwa contended that learned trial court has committed an illegality in convicting and sentencing the accused appellant for the above offences. He referred all the relevant exhibits as well as statement of the prosecution witnesses from PW1 to PW11. He contended that the prosecution failed to prove the exclusive possession of the appellant over house from where recovery of contraband was made. The trial court wrongly recorded a finding to the effect that the said house was in exclusive possession of the appellant. The said house was admittedly of the ownership of the co-accused Ram Murty and co-accused Ram Murti wrongly stated that the said house was let out to the appellant. He contended that no rent note was produced to show that house was let out to appellant by owner of the house namely Ram Murty. He further contended that there was no description of the house in secret information Ex.R27. He also pointed out number of contradictions in oral as well as documentary evidence in respect of exclusive possession of the house of the appellant. He also contended that the learned trial court wrongly relied upon the statement of co-accused Ram Murti Ex.R 13 recorded under Section 67 of the Act against the appellant whereas the said statement could not have been read against the appellant in view of Section 30 of the Evidence Act. He contended that charge against the appellant and co-accused Ram Murti was different and was not for the same offence, therefore, Section 30 of the Evidence Act was not applicable and that statement could not have been read against the appellant. He contended that charge against the appellant and co-accused Ram Murti was different and was not for the same offence, therefore, Section 30 of the Evidence Act was not applicable and that statement could not have been read against the appellant. He further contended that although there is a reference in Ex.P.2 that key of the said house was given by the appellant and thereafter lock was opened but in Ex.P.3 seizure memo of key and lock and in Ex.R8 there is no reference that key of the room was given by appellant and lock was opened. Mere giving a reference in Ex.R2 is not sufficient and the same cannot be made a basis for conviction of the appellant. He contended that PW10 Satyapal Singh stated in his statement that main gate of the Haveli was opened by the key given by appellant and as per statement of other witnesses it is clear that number of other persons were residing in the said Haveli, therefore, exclusive possession of the appellant of the house/room was not proved. He also contended that there was no seal affixed on Ex.R3 Seizure Memo of key and lock. The key and lock were not opened in the Court. PW1 has not stated in his statement that key was given by the accused appellant, therefore, there are number of material contradictions which are fatal to the prosecution and there is no corroborative evidence like rent - note to prove the exclusive possession of the appellant and in these circumstances his prayer is that conviction and sentence passed by the trial court be set aside. He referred Kishan Lal v. The State of Rajasthan 2000 Cr.L.R. (Raj.) 717 , Mohd. Alam Khan v. Narcotics Control Bureau AIR 1996 SC, 3033 , Peter Endy Oruasah v. State of Goa 1995 (2) Crimes, 851 , State of M.R v. Prabhulal II (1994) CCR 863 , Gopal v. State of M.R JT 2001 (10) SC 543 and State of Punjab v. Balkar Singh and Anr. 2004 (1) Supreme (Cr.) 530 . 8. Alam Khan v. Narcotics Control Bureau AIR 1996 SC, 3033 , Peter Endy Oruasah v. State of Goa 1995 (2) Crimes, 851 , State of M.R v. Prabhulal II (1994) CCR 863 , Gopal v. State of M.R JT 2001 (10) SC 543 and State of Punjab v. Balkar Singh and Anr. 2004 (1) Supreme (Cr.) 530 . 8. The learned counsel for the appellant also contended that there are number of contradictions in the statements of the prosecution witnesses in respect of Bus story, staying of officers of Narcotics Department in Rest House, secret information, another residential house of the appellant, Intelligence - report about description of the house of appellant, search and seizure and contended that these contradictions are material and fatal to the prosecution case. He referred Bhola Ram Kushwaha v. The State of Madhya Pradesh JT 2000 (Suppl.2) SC 632 , Bahadur Singh v. State of M.R & Anr. JT 2001 (10) SC 231 , Gurbax Singh v. State of Haryana JT 2001 (2) SC 330 , and Jitendra & Anr. v. State of M.R JT 2003 (Suppl.1) SC 331 . 9. In last the learned counsel for the appellant contended that although in view of his above submissions the order of conviction and sentence passed by the trial court is liable to be set aside but even if this Court does not agree with his contentions then at least the case of appellant be considered in respect of sentence of imprisonment. He contended that the appellant was arrested on 12.7.97 and was not released on bail during trial as well as during pendency of appeal before this Court and has already served out a sentence of imprisonment for about 8 and half years, therefore, the ends of justice would met if maximum sentence of 20 years awarded by the trial court is reduced to a minimum sentence of 10 years imprisonment. 10. The learned Special RR for the Union of India contended that the judgment of the learned trial court is based on oral as well as documentary evidence and trial court has rightly convicted and sentenced the accused appellant. 10. The learned Special RR for the Union of India contended that the judgment of the learned trial court is based on oral as well as documentary evidence and trial court has rightly convicted and sentenced the accused appellant. It was also contended that recovery of contraband is fully proved in the present case from the exclusive possession of the house of the appellant, which Is proved from Ex.R2 and Ex.R 13 and further from the statement of PW5 Jamna Lal Meena and PW10 Satyapal Singh. 11. I have considered the rival submissions and examined the impugned judgment and record of the trial court. 12. The learned trial court recorded a finding about actual physical exclusive possession of the house of the appellant from where the contraband was recovered, on the basis of Ex.R13 statement of Ram Murti recorded under Section 67 of the Act, the statement of co-accused Ram Murti recorded under Section 313 Cr.RC., Ex.R18 Electricity bill, statement of PW1 Nand Lal Rai, PW2 Mohd. Rehan Qurashi, statement of PW5 Jamna Lal Meena, statement of PW9 Harimohan, statement of PW10 Satyapal Singh and statement of PW11 Vijay Singh Meena. I have examined the record of the trial court. There is a specific reference in Ex.R27 secret information given by the informer that in case the house, which is in possession of Bhagat Singh, is raided then contraband can be recovered. In Ex.R2 recovery memo it has been mentioned that appellant Bhagat Singh was present at his house and after giving notice to him, he gave a key of lock of the house and thereafter lock was opened and contraband was recovered. Ex.P.27 has been proved by PW11 Vijay Singh. Ex.R2 has also been proved by 3 prosecution witnesses named above. In Ex.R1 there is a 'note' written by appellant Bhagat Singh himself in his own hand writing that he is ready for search of house, which is in his possession, from the Inspector of Narcotics Department itself and he has no objection in it. Ex.R5 site plan is duly signed by appellant and it has been proved by prosecution witnesses. PW1 Nandlal Rai has stated that Jamna Lal PW5 gave a notice to appellant for search of his house and appellant in his own hand - writing gave consent for search of the house. Ex.R5 site plan is duly signed by appellant and it has been proved by prosecution witnesses. PW1 Nandlal Rai has stated that Jamna Lal PW5 gave a notice to appellant for search of his house and appellant in his own hand - writing gave consent for search of the house. PW5 Jamna Lal stated in his statement that the house which was in possession of Bhagat Singh appellant was locked and the key of lock was given by appellant from his pocket and thereafter he entered in the house of appellant Bhagat Singh alongwith witnesses and made search and recovered the contraband. Although it is correct that the rent - note has not been produced on record and owner of the house was co-accused Ram Murti but from the above referred oral and documentary evidence it is clear that at the time of search the house/room was in exclusive possession of the appellant. The citations referred by the learned counsel for the appellant are based on facts and circumstances of particular cases and are not applicable in the facts and circumstances of the present case where on the basis of oral and documentary evidence, exclusive possession of the appellant over the house, from where contraband has been recovered, is fully proved. So far as contradictions pointed out by the learned counsel for the appellant in the statement of the prosecution witnesses in respect of bus story, staying of officers of the Narcotics Department in the Rest House, secret information, residential house of the appellant, Intelligence report, search and seizure are concerned, I have examined the statement of prosecution witnesses and I find that although there are number of contradictions but in my view the said contradictions are not material which may prove fatal to the prosecution case. In these circumstances, I do not find any force in another submission also of the learned counsel for the appellant so as to interfere in the order of conviction passed by the trial court. 13. However, looking to the above referred contradictions in the statement of prosecution witnesses, which in my view are not fatal to the prosecution case but they are certainly relevant for the purpose of awarding lesser sentence of imprisonment than of awarding maximum sentence of imprisonment prescribed by law. 13. However, looking to the above referred contradictions in the statement of prosecution witnesses, which in my view are not fatal to the prosecution case but they are certainly relevant for the purpose of awarding lesser sentence of imprisonment than of awarding maximum sentence of imprisonment prescribed by law. The learned trial court has awarded the maximum sentence of 20 years imprisonment for each offence which I find excessive and in my view, the same is liable to be reduced. In my view ends of justice would met if sentence of imprisonment of 20 years in each offence is reduced to a period of 13 years R.I. with fine of Rs. 2,00,000/-, in default of payment of fine to further undergo one year R.I. 14. Consequently, while upholding the order of conviction passed by the trial court against the appellant in both the offences, I reduce the sentence of imprisonment and fine under Section 8/18 from 20 years R.I. to 13 years R.I. with fine of Rs. 2,00,000/-, in default, to further undergo additional one year R.I. and under Section 8/20 of the NDPS Act from 20 years R.I. to 13 years R.l. when fine of Rs. 2,00,000/-, in default of payment to further undergo additional one year R.I. 15. The appeal of the appellant is partly allowed. The conviction of the appellant is upheld. The order of sentence passed by the trial court is modified to the extent as mentioned above. Both the substantive sentence of imprisonment of 13 years only, will run concurrently, in case appellant fails to deposit the amount of fine, then the sentence of additional imprisonment awarded in lieu of payment of fine will not run concurrently.Appeal partly allowed. *******