Judgment

Vinod Chatterji Koul, J.—By virtue of this appeal the appellants herein assail their conviction awarded by learned Sessions Judge, Kathua (for short “Trial Court”) for offence committed under Section 8 read with Section 15(C) of the Narcotics Drugs & Psychotropic Substance Act (hereinafter called as “NDPS Act”) for recovery of 720 Kg of Bukhi from their possession. The appellants were to undergo rigorous imprisonment for 20 days and to pay a fine of Rs. One lac for the commission of offence under section 8 r/w Section 15(C) NDPS Act.

2. The case of the prosecution, as emerges from the challan, reveals that on 19.08.2010 at 11.00 AM, the appellants, namely, Jaspal Singh S/o Roshan Singh, being driver and owner of the vehicle, and the helper, Harpal Singh S/o Roshan Singh, both residents of Dharam Kot District Mogo, were found in a Truck bearing No.PB12H-7041. When appellants reported for clearance of Truck at Export yard Toll Post Nagri Kathua, they stated that the truck is empty, but when the truck was physically checked by Excise Guard on duty, namely, Javed Iqbal, the truck was found loaded with filled gunny bags. The said Javed Iqbal, Excise Guard, immediately reported the matter to Dheeraj Kumar, Sub Inspector, Excise Toll Post, Nagri, Kathua, who in turn reported the matter to Inspector Excise, Rohit Sharma. Ultimately the matter was brought to the notice of Shri Pardeep Singh Chib, Excise and Taxation Officer, Toll Post Nagri. The vehicle was put to thorough physical examination under the supervision of Shri Pardeep Singh Chib, ETO, along with Rohit Sharma, Inspector Excise, and two Excise Guards, namely, Javed Iqbal and Fazal Hussain. It was found that 20 gunny bags were allegedly containing Poppy Straw (Bukhi) in the Truck No.PB12H-7041. Both the convicted persons were detained on the spot. The matter was reported to the Inspector Excise Sub Range, Kathua, who came on the spot along with Executive Magistrate, Kathua. The contraband was seized and weighed in presence of the Executive Magistrate and it was found to be weighing 720 Kgs. Two samples weighing 50 gms were taken from each bag and sent to FSL for chemical analysis. The FSL report reveals the sample belonging to Poppy plant (pappaver Somniferum) and morphine was detected from them. It was found in the investigation that the appellants were transporting, smuggling commercial quantity of poppy straw illegally. After completion of the investigation, challan was filed and the charge for the commission of offence under sections 8/15 NDPS Act was proved against both the appellants. After full dress trial, both the appellants stand convicted by the Court of Principal Sessions Judge, Kathua, vide its judgment dated 14.0.2013. On 15.01.2013, the appellants were sentenced to undergo rigorous imprisonment for a period of 20 years, with a fine of Rs.1.00 Lakh each for commission of offence under Section 8 read with Section 15 (C) of NDPS Act. In default of payment of the fine, the appellants would undergo simple imprisonment for a further period of one year.

3. Appellants have preferred the instant appeal against the judgement dated 14.01.2013 and the sentence order dated 15.01.2013 before this Court. The appellants challenge the judgement and order on the following grounds:

(a) That appellants are innocent and have not committed any offence;

(b) That the entire evidence collected during investigation by the investigating officer is in violation of the law governing the search, seizure of the alleged contraband and arrest of the appellants.

(c) That while making the search, recovery, seizure and arrest of the appellants, the provisions of NDPS Act, in particular Section 41, 42, 43 & 50 had been completely violated.

(d) That the mandate of law as envisaged under Section 52 to 67 of the NDPS Act, was completely misread.

(e) That the trial Court has committed grave error by not appreciating the fall out of failure of the prosecution to produce the poppy straw, allege