1. - Appellant Budhram has filed this appeal against the judgment of conviction and order of sentence dated 23.7.2001 passed by the learned Special Judge, NDPS Cases, Jodhpur in Sessions Case No. 15/2000, whereby he has been convicted u/s. 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act' or 'the Act') and has been sentenced to 10 years rigorous imprisonment with a fine of Rs. 1 lac, in default thereof to further undergo rigorous imprisonment for two and a half years.

2. The facts giving rise to the present case are that on 29.12.1999 PW-1 SHO Police Station, Sindari started in Govt. Jeep as per instructions of S.P., Barmer alongwith police officials in patrolling duty to check illegal trafficking of wine. The police party reached at Gadeshra Phatak and there they staged Nakabandi. In the night, at about 1.00 a.m., one truck was seen coming from Balotra. Signal was given to the driver of the truck and the truck was stopped. The driver of the truck Budhram tried to run away after opening the gate of the truck but was apprehended. Another person sitting in the truck, opened the door of other side, fled away and could not be apprehended. The Driver of the truck Budhram was asked as to what was there in the truck. He replied that in the truck there was poppy husk. The body of the truck was covered by a black Tarpaulin. On removing a part of Tarpaulin from corner side, in the light of torch when seen, they saw many bags lying in the truck. On touching and feeling, it was found that bags contained poppy husk. Since it was dark, the accused alongwith truck and raiding party came to the police station. PW-3 FC Pemaram was asked to bring weighing measures. Till then C.O. Yadram had come. He was intimated about the entire incident. In all, 71 bags were found loaded in the truck and on weighing them the weight was found about 28 quintals and 14 kgs. From each bag, two samples of 500 grams each were taken and the same were seized, sealed and marked. The remaining poppy husk was refilled in the same bags and they were numbered. The bags were sealed. The entire factual aspect and the proceedings which took place were entered in the Rojnamcha Aam Ex.P/10. On the basis of Rojnamcha report Ex.P/10, FIR Ex.P/11 was chalked out. The samples and recovered contraband material was deposited in the Malkhana.

3. During the course of investigation, PW-8 Chhug Singh, C.I., recorded the statements of witnesses, samples were sent to FSL, Jodhpur after getting a forwarding letter from S.P., Banner Ex.P.9 and prepared road certificate Ex.P/12. Accused was arrested.

4. After investigation, challan was submitted in the Court of Special Judge, NDPS cases, Jodhpur, who after hearing both side, framed charge u/s. 8/15 of the NDPS Act against the accused appellant. Accused denied the charge and claimed trial. In support of its case, prosecution examined as many as 13 witnesses. In the statement recorded u/s. 313 Cr.P.C., the accused denied the prosecution case and stated that no recovery of poppy husk was effected from him. He further stated that he was not aware about the material which was in the truck and said that the owner of the truck was Mana Ram. No evidence in defence was led.

5. The learned trial Court vide impugned judgment and order dated 23.7.2001 convicted and sentenced the accused-appellant as indicated herein- above.

6. Aggrieved by the aforesaid judgment of conviction and order of sentence, the present appeal has been filed.

7. Heard learned counsel for the appellant as well as the learned Public Prosecutor.

8. It was contended by learned counsel that in the present case no independent witness was arranged but two police constables were made motbirs of the case, who are PW-2 Jetha Ram and one Arjun Singh. Only Jetha Ram has been examined and Arjun Singh has not been examined. Learned counsel submitted that in the absence of independent witnesses and also in view of the fact that none of