Judgment

Sanjeev Kumar, J.—These two appeals, one filed by Ali Mohd the driver and the other by Mukhtar Ahmed, the conductor of the Truck, wherefrom the alleged contraband was seized, are directed against the judgment of conviction and order of sentence passed on 28.11.2008 by learned Sessions Judge, Ramban [the trial Court] in File No. 15/C titled State vs. Ali Mohd and another. The trial Court has convicted both the appellants for offences under Section 20 (b) (ii) (C) read with Section 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 ( hereinafter ‘the NDPS Act’) and has sentenced both to undergo Rigorous Imprisonment for a period of 12 years and a fine of Rs. 2 lacs each. In case of default in payment of fine the appellants have been directed to undergo further rigorous imprisonment for a period of one year.

2. Before we advert to the grounds of challenge urged to assail the impugned judgment, it is necessary to first give brief resume of the prosecution case.

3. As per prosecution, on 24.09.2006, Constable Altaf Hussain presented a docket in Police Station Chanderkote for registration of FIR. As per the docket, Sachinder Pal Singh, PSI along with SHO Ghulam Hussain, Constable Altaf Hussain, Parkash Chand, Abdul Wahid, SPO Ravi Kumar and Dharam Paul had laid a Naka near Makhan Dhaba on National Highway at Chanderkote. While checking of traffic was going on, at 9.45 P.M one Truck bearing Registration No. JK02C-9873 driven by appellant Ali Mohd came from Srinagar and was proceeding towards Jammu. The Truck was ordered to be stopped but the driver ignored the signal and tried to run away. The vehicle was chased and stopped near the market in Chanderkote. On checking, one white plastic bag containing suspected contraband was recovered from near the driver seat. On enquiry, appellant Ali Mohd informed that it contained ‘Charas’. On the information given in the docket, FIR 67/2006 for offences under Sections 8/20 of the NDPS Act was registered in Police Station Chanderkote. During the course of investigation, the Investigating Officer, i.e. SHO Nazir Ahmed Dar, prepared the site plan and various seizure memos. The contraband item was seized and was weighed with the help of weighing machine belonging to one Gurdev Singh, the owner of Makhan Dhaba. The contraband item was found to be weighing 8 kg and 700 grams. From the seized contraband, two samples of 60 grams and 40 grams each were taken and sealed in two packets marked as ‘C’ and ‘B’ respectively. The rest of the contraband, weighing 8 kg and 600 grams was separately sealed and marked as ‘A’. The packet weighing 60 grams i.e. the packet marked as ‘C’ was sent to Forensic Science Laboratory (‘FSL’) whereas sealed packet marked as ‘B’ weighing 40 grams was sent to the area Magistrate. The third packet marked as ‘A’ was sent to the Malkhana after being sealed on spot and then being resealed in the presence of the Executive Magistrate, Batote. The ring used for sealing of samples was given on superdnama of Gurdev Singh, the owner of Makhan Dhaba. On the basis of opinion of the FSL, the contraband item was confirmed to be ‘Charas’ and, therefore, the investigation was concluded as proved against the appellants and accordingly a charge sheet for offences under Sections 8/20/29 NDPS Act and Section 3/181 of the Motor Vehicles Act was laid before the trial Court.

4. To prove its case, the prosecution examined PW1-Sachinder Paul Singh, PW2-Ghulam Hussain, PW3 Mohd Yasin, PW4-Zahoor Hussain, PW5-Abdul Gani, PW6-Surjeet Singh, PW7-Altaf Hussain, PW8-Mohd Yousaf, PW9-Abdul Rashid Rather, PW10-Abdul Wahid, PW11-Pawan Abrol and PW12-Nazir Ahmed Dar. On the closure of the prosecution evidence, the incriminating circumstances appearing against the appellants were put to them and their statements under Section 342 Cr.P.C were recorded. The appellants took the plea that no illicit drug had been recovered from the truck and that the prosecution witnesses were lying and had framed