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2017 DIGILAW 1978 (RAJ)

Mohammad Aaliya Urf Aaliya v. State Of Rajasthan

2017-09-04

DEEPAK MAHESHWARI

body2017
JUDGMENT Deepak Maheshwari, J. - This appeal has been directed against the judgment dated 18.02.2012 passed by learned Special Judge NDPS cases, Jaipur, whereby learned trial Court convicted the accused-appellant Mohammad Aaliya @ Aaliya for the offence punishable under Section 8/20 NDPS Act, 1985 and awarded Rigorous Imprisonment for a period of 5 years along with a fine of Rs. 25,000/- and default sentence of 6 months Rigorous Imprisonment was also awarded. 2. None came present to make submission on behalf of the accused-appellant. Heard learned Public Prosecutor. The judgment impugned as well as the material available on record was critical examined by me. 3. Facts in brief are that on 12.02.2011, SHO, P.S. Sadar Jaipur City, Sh. Manoj Kumar Gupta, on the basis of the information received from an informer, reached on the second class booking office of Railways near Hasanpura Bridge, at about 4.40 P.M. along with two independent witnesses i.e. Shyam Sunder and Harinarayan Sharma. Seeing the police party, the accused started to climb stairs, who was apprehended by the police party. He was holding a pink polythene bag in his right hand. On checking the same, a brown coloured substance was found in the Banana Leaves, which was suspected to be "charas". 4. It weighed 700 gms., out of which 2 samples of 50 gms. each, were taken. Rest of the substance was ceased vide seizure memo Ex.P8. FIR, Ex.P17, was registered. The sample was sent to FSL for chemical examination. Report Ex.P18, received therefrom confirmed that the recovered substance was "charas". Charge sheet for the offence under Section 8/20 NDPS Act was filed against the accused. 5. After concluding trial, the learned trial Court proceeded to record conviction for the offence under Section 8/20 NDPS Act against the accused-appellant and sentenced him as stated above. Aggrieved by the judgment, this appeal has been preferred on behalf of accused-appellant. Despite the name of Mr. Abdul Kalam Khan and Mr. Mahesh Gupta shown in the cause-list, for the accused none came present to argue the appeal. On critical examination of the evidence available on record, it is found that PW-9 Manoj Kumar has fully corroborated the prosecution story and the fact regarding apprehending the accused on the Railway Booking Office situated near Hasanpura Bridge and making recovery of 700 gms. Mahesh Gupta shown in the cause-list, for the accused none came present to argue the appeal. On critical examination of the evidence available on record, it is found that PW-9 Manoj Kumar has fully corroborated the prosecution story and the fact regarding apprehending the accused on the Railway Booking Office situated near Hasanpura Bridge and making recovery of 700 gms. of "charas" from a Pink Polythene bag held by the accused in the presence of independent witnesses PW-7 Shyam Sunder and PW-10 Harinarayan Sharma. 6. Both these witnesses PW-7 and PW-10 have proved the fact regarding recovery of "charas" from the accused. Recovery memo Ex.P8, search memo Ex.P9, arrest memo Ex.P11, memo of sample seal Ex.P12, seizure memo of brass seal Ex.P13 have also been proved by PW-9 Manoj Kumar as also by PW-7 Shyam Sunder and PW-10 Harinarayan Sharma. PW-3 Kailash Chand, who was incharge of malkhana has also stated that on 12.02.2011, sealed packets were deposited by the SHO in malkhana of the police station and entries were made in malkhana register Ex.P3 in this regard. Thereafter he handed over the sealed packets to Vijay Kumar for depositing the same in FSL after making entry in this regard in the register. PW-4 Vijay Kumar has also stated to have received the sealed packets and to have deposited the same in sealed condition alongwith letter Ex.P5 of the S.P. office. He got receipt of FSL Ex.P6. 7. Perusal of Ex.P6 also confirmed the deposit of sealed packets and after chemical examination report Ex.P18 was prepared the FSL, whereby it has been proved that the substance recovered from the accused was "charas". In light of this connecting evidence learned trial Court has come to the conclusion that the offence under Section 8/20 NDPS Act is found proved beyond any reasonable doubt against the accused-appellant. 8. In so far as the presence of independent witnesses in whose presence recovery was effected from the accused is concerned, the statements given by PW-7 Shyam Sunder and PW-10 Harinarayan Sharma are found to be of starling worth. They were not knowing the accused prior to the recovery. Even the accused, in statement recorded under Section 313 Cr.P.C., 1973 has stated that he does not know PW-7 Shyam Sunder. Nothing has come out in the cross-examination of these witnesses which make them unreliable. 9. They were not knowing the accused prior to the recovery. Even the accused, in statement recorded under Section 313 Cr.P.C., 1973 has stated that he does not know PW-7 Shyam Sunder. Nothing has come out in the cross-examination of these witnesses which make them unreliable. 9. So far as the question of compliance of Section 5 of the NDPS Act is concerned, it was not required as the recovery was made from the polythene bag by the accused in his right hand and not from the body of the accused. 10. On critical scanning of the judgment impugned, I am of the considered view that the judgment is completely in consonance with the evidence available on record. The ocular as well as documentary evidence has proved the prosecution story beyond reasonable doubt. Thus, no infirmity is found in the judgment impugned. The same deserves to be upheld and is accordingly upheld. 11. Now, adverting to the quantum of sentence, I am of the view that the sentence awarded by learned trial Court for 5 years Rigorous Imprisonment along with fine of Rs. 25,000/- with default sentence for 06 months Rigorous Imprisonment is proportionate to the nature and gravity of the offence. No interference is required to be made in the judgment impugned in this regard also. 12. In the result, the judgment impugned dated 18.02.2012 is upheld and accordingly the appeal preferred on behalf of the accused-appellant fails. 13. Office is directed to take necessary consequential steps accordingly.