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2009 DIGILAW 1018 (RAJ)

Ganesh v. State of Rajasthan

2009-04-13

MAHESH CHANDRA SHARMA

body2009
JDGMENT :- Since the controversy involved in both the criminal appeals arise of common facts and same judgment, : hence same are being decided together by common judgment. 2. Both the criminal appeals have been by the accused appellants under Section 374, Cr. P.C. by which they have challenged the judgment of conviction and sentence dated 27-8-2002 passed by Special Judge, NDPS Court, Jhalawar (for short 'the Court') passed in Sessions Case No. 12/2002 by which the trial Court convicted both accused appellants for the offence under Section 8/18 of the NDPS Act for a period of ten years rigorous imprisonment and a fine of Rs. 10,000/-. In default of payment of fine to further undergo three years rigorous imprisonment. 3. Brief facts of the case giving rise to both the criminal appeals are that complainant Mr. Chetany Kumar Sharma, SHO, P.S. Jhalawar received a Mukhbir information that the accused appellants have blue colour bag and they have illegal opium and they It to sell it and they have come from Sadla to Badi. As soon as received the above information from Mukhabir, then SHO informed to superior police officer and went there as per information given by Mukhabir, and arrested both the accused called the independent witnesses and ill the acts as per the NDPS Act. When searched accused Ganesh then found 4 plastic packets in the bag which have 4 kg. opium and also searched accused Pappu than found 2 plastic packets in the bag. 4. The police on the basis of this information, registered an FIR ,against the accused appellants for the aforesaid offence. The police after registering case commenced investigation. 5. The police after investigation submitted challan against the accused appellants. 6. The trial Court after hearing framed charges against the accused appellants for the aforesaid offence, who denied the charges, pleaded not guilty and claimed to be tried in the matter. 7. The prosecution in support of its case produced as many as 15 witnesses and certain documents were got exhibited. Thereafter. the statements of the accused appellants u/S. 313. Cr. P.C. were recorded. In defence the accused-appellants did not produce any evidence. 8. The trial Court after hearing both the parties convicted and sentenced both the accused-appellants for the aforesaid offence vide judgment dated 27-8-2002. 9. Thereafter. the statements of the accused appellants u/S. 313. Cr. P.C. were recorded. In defence the accused-appellants did not produce any evidence. 8. The trial Court after hearing both the parties convicted and sentenced both the accused-appellants for the aforesaid offence vide judgment dated 27-8-2002. 9. The accused appellants being aggrieved with the impugned judgment of conviction and sentence dated 27-8-2002 passed by the trial Court has preferred both the appeals before this Court (though accused-appellants in both the criminal appeals are same). 10. Before starting arguments of the case Mr. Ravindra Pal Singh. Advocate appearing on behalf of Mr. J. K. Singhi. counsel for the accused appellant No. 1 made a statement at Bar that accused-appellant No. 1 Ganesh has died two years back. Therefore, the criminal appeal filed on his behalf has been abated under Section 394. Cr. P.C. and the same be dismissed as having become infructuous. 11. Mr. S. K. Jain, counsel appearing for the accused-appellant No.2 Pappu alias Dhariya submits that the trial Court has not properly appreciated the statements of the prosecution witnesses and erred in convicting and sentencing the accused-appellant No.2. According to him, the independent witnesses have not supported the case of the prosecution and declared hostile. If the FIR is taken as it is on the face of it, even then the conviction of the accused-appellant No. 2 cannot be sustained at all. The allegations levelled in the FIR as also the statements of the prosecution witnesses do not disclose the commission of the offence by the accused-appellant No.2. The prosecution has not complied with the mandatory provisions of Sections 42. 50 and 55 of the Act. Thus, the impugned judgment dated 27-8-2002 passed by the trial Court be quashed and set aside and the accused-appellant No.2 be acquitted from the aforesaid offence. 12. Per-contra Mr. Laxman Madnani, Public Prosecutor appearing for the State controverted the aforesaid submissions of Mr. Jain and submits that search memo was prepared in presence of the Tehsildar, who is independent witness, after making search of the accused-appellants. The police personnel were also present at the time of search of accused-appellants. Lastly, he submits that the report of the FSL also proves that the recovered material is opium. Thus, no interference is required to be made in the impugned judgment of conviction and sentence dated 27-8-2002 passed by the trial Court. 13. The police personnel were also present at the time of search of accused-appellants. Lastly, he submits that the report of the FSL also proves that the recovered material is opium. Thus, no interference is required to be made in the impugned judgment of conviction and sentence dated 27-8-2002 passed by the trial Court. 13. From a bare perusal of the facts of the case, statements of the prosecution witnesses, FSL report, seizure memo etc. it is clear that the trial Court has passed the impugned judgment of conviction and sentence dated 27-8-2002 after fully applying its mind and in my considered view, no interference is required to be made in the impugned judgment. 14. In the result, both the criminal appeals are devoid of merits and stand dismissed and the judgment of conviction and sentence dated 27-8-2002 passed by the Special Judge. NDPS Cases, Jhalawar passed in Sessions Case No. 12/2002 is maintained. 15. So far as criminal appeal filed on behalf of accused-appellant No.1 Ganesh s/o Rodulal is dismissed as having become abated. The proceedings against him stand dropped. 16. The concerned Jail Authorities are directed to release the accused-appellant No. 2 Pappu alias Dharia s/o Srilal, forthwith after completion of his total sentence, if not required in any other case. Appeal dismissed.