Hon'ble SHARMA, J.—The appellant Patrik Thomas Gairo Malujo filed this appeal against the judgment dated July 17, 2006 of Special Judge Narcotic Drugs and Psychotropic Substances Act Cases, Kota in Sessions Case No. 10 of 2004 convicting and sentencing the accused appellant under Section 8/20 of NDPS Act for 10 years RI with fine of Rs. 1,00,000 in default of payment of fine to suffer one year RI.

2. Brief facts of the case are that on November 14, 2003 at about 9 in the night on reaching 2952 UP Rajdhani- Mumbai Express at Kota Railway Station announcement was made for attending the train, on which Assistant Sub Inspector Kesar Singh and Constable Ram Prasad proceeded to attend the train at platform No. 2. On contacting by GRP staff with TS Rajdhani Express, N. Ramesh in presence of HTC Manoj Verma handed over 3 bags received vide memo A-2 to the staff after taking out the same from PC/2. Constable Ram Prasad opened the 3 bags in presence of HTC for the purpose of depositing the same in LP office then used clothes were found in 2 bags while on opening the third bag there was yellow colour foam on all the 4 sides and on the top also yellow colour foam was found. On removing the foam some used clothes and 35 polythene packets were found. On opening one of the packets black colour substance was found. On smelling it was found to be charas. On this constable Ram Prasad informed telephonically to Police Station Incharge Jagmal Singh. Jagmal Singh, S.I. reached alongwith investigation box and the team at the LP office and the substance found in the bag was checked by the kit and it was ascertained to be Charas. After opening all the 35 packets samples of 30 grams each were prepared and marked as A and B. Remaining charas was packed in the 35 separate packets. All the 3 bags were seized separately. On receipt of above report FIR No. 251/2003 for offence under section 8/20 of NDPS Act was registered and investigation commenced. During the course of investigation the accused appellant along with co-accused John Don Ho were arrested. After completing the investigation the police filed charge sheet No. 76/2004 on 13.5.2004 for offence under Sections 8/20 and 8/29 of the NDPS Act. Charge was framed against the accused appellant for offence under Section 8/20 of the NDPS Act. The accused appellant denied the charge and claimed to be tried. The prosecution produced as many as 29 witnesses along with certain documents in support of its case. The accused was examined under Section 313 Cr.P.C. and he did not produce any witness in his defence and stated the prosecution story to be false. After hearing both the parties, the trial court convicted and sentenced the accused appellant vide judgment and order dated 17.7.2006 for offence under section 8/20 of the NDPS Act as stated above.

3. Mr. Tariq Sayeed, learned counsel appearing for the accused appellant argued that the seizing officer PW.20 Jagmal Singh was not competent to carry out the search and seizure and he was simply sub-inspector and not posted as SHO. SHO Laxmi Narain PW.18 was available in the police station and inspite of this fact seizure was effected by Jagmal Singh and as per Notification issued by the State Government under Section 42 NDPS Act he was incompetent being simply sub inspector. The place where the seizure is effected is not material on the facts and circumstances of the present case as person who is taking steps under NDPS Act must be of and above the rank of Station House Officer (SHO). He placed reliance on Roy V.D. vs. State of Kerala 2000(1) SRJ 169, Bherulal vs. State of Rajasthan 2004(1) Cr.L.R. 612 (Rajasthan), Om Prakash vs. State of Rajasthan 2007(1) Cr.L.R. 448 (Rajasthan) Jaggan Nath vs. State of Rajasthan 1994 Cr.L.R. 709 (Rajasthan), Ram Kumar Singh vs. State of Rajasthan 1994 Cr.L.R. 68 (Rajasthan, Satyanarain and another vs. State of Rajasthan 2000-01 (Supp) Cr.L.R. 88 (Rajasthan) and Mitho Singh vs. State of Rajasthan 1992 Cr.L.R. (Raj. 74.

Learned coun

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