JUDGMENT : 

YASHVIR SINGH RATHOR . J.

1. This order shall dispose of above noted two appeals, as the same have emanated out of the same occurrence.

2. The present appeals have been filed by the appellants against the judgment dated 20.09.2004, passed by learned Additional Sessions Judge, Fatehabad, whereby the appellants have been held guilty and convicted for the offence under Section 15 (c) of the NDPS Act and have been sentenced to undergo rigorous imprisonment for a period 10 years and to pay fine of Rs. 1 lakh each and in case default of payment of fine, they have been ordered to undergo rigorous imprisonment for a period of 2 years.

3. Brief facts of the prosecution case are that on 11.07.2000, S.I. Azad Singh posted as Incharge of Police Post Daryapur was present at Bus Stop Daryapur in connection with the checking of vehicles. In the meantime, a jeep bearing registration No. HR-39/5247 came from the side of Sirsa City, which was stopped by the police party and on inquiry, the driver of the jeep told his name as Kanihya Lal and the co-passenger disclosed his name as Krishan. On checking the said jeep, three gunny bags were found lying on the back portion of the jeep. Suspecting that the bags contained some intoxicating substance, the Investigating Officer served a joint notice under Section 50 of the NDPS Act (Ex.P11), upon the accused to the effect that he wanted to search the gunny bags and if accused so desire, the search can be conducted in the presence of a Gazetted Officer or a Magistrate. The contents of the notice were read over and explained to the accused, who signed the same in token of its acknowledgment in the presence of C.Surajmal and C. Kashmir Singh. In the joint reply, accused desired that search be conducted in the presence of a Gazetted Officer. Accordingly, DSP Ram Kumar was informed to reach the spot and after some time, DSP Ram Kumar reached at the spot. After appraising him about the facts of the case, as per the directions of the DSP, search of the jeep was conducted and three gunny bags containing poppy husk were found lying on the middle seat of the jeep. A sample of 100 grams of poppy husk was separated from each of the gunny bags and the remaining quantity on weighment was found to be 39.900 kgs, in each bag. The samples and the remainder were converted into separate parcels and sealed with the seal of AS by the Investigating Officer Azad Singh and RK by the DSP. The seal of AS, after use, was handed over to C. Kashmir Singh, whereas, DSP kept his seal with himself. The sample parcel and residue parcels alognwith the jeep were taken into possession, vide recovery memo Ex. P1. Ruqa Ex P-7 was also sent to the Police Station, on the basis of which formal FIR Ex R-8 was registered. The Investigating Officer also recorded the statements of the witnesses and prepared a rough site plan of the place of occurrence Ex. P-13.

4. On return to the police station, the Investigating Officer produced the accused and the witnesses alongwith the case property and the jeep before Inspector Shingara Singh SHO, who verified the facts and after verification, he affixed his own seal SS on each parcel. The Investigating Officer also submitted a separate report under section 57 of the Act in this regard, which was also endorsed by the SHO. As per the direction of the SHO, Investigating officer handed over the case property and samples to the MHC and confined the accused in police lock-up.

5. All the samples were sent to the office of Chemical Examiner for analysis. Accordingly, on completion of investigation, a formal charge-sheet was filed against the accused and was submitted in the Court of Area Magistrate and ultimately sent to the Court for trial.

6. Upon appearance, the accused were charge-sheeted for the commission of offence punishable under section 15 of NDPS Act, vide order dated 01.02.2001 by the Trial Court for having in their possession three gunny bags containing 40 kg. poppy straw in each gunny bag, without