VINOD NAMDEO Vs. STATE OF M P

JUDGEMENT

(1.) This criminal appeal is directed against the judgment of conviction and order of sentence dated 29th May, 2000 passed by learned Special Judge (NDPS) in Special Case No.39/1999, by which the appellant has been found guilty for commission of offence un der Section 20 (b) & 22 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (here inafter referred to as "the N.D.P.S Act") and has been sentenced to undergo R.I. for 2 years under Section 20 (b) and R.I. for 10 years with a fine of Rs. 1,00,000 under Sec tion 22 of the NDPS Act and in default of payment of fine, additional R.I. for 3 years.

(2.) The case of the prosecution is that on 16.3.1999, an information was received by Bholanath Singh (PW5), A.S.I, of Police Sta tion Ambikapur that the appellant is sell ing ganja and brown sugar in front of his house. The information was taken in writ ing under rojnamcha sanha No. 1268 (An-nexure P24). Vide Ex. P2, Bholanath Singh (PW5) recorded reasons for proceeding with out obtaining search warrant and informa tion to the City Superintendent of Police was sent vide Ex. Pi in compliance of manda tory provision contained in Sec'on 42(2) of the NDPS Act. Thereafter, Bholanath Singh (PW5) proceeded to the scene of occurrence along with his team by recording his depar ture at 16.40. After reaching the place of occurrence at Brahampara (Ghasiapara), summons of Ex.P4 B was given to Md. Saleem (PW3) and Shashid Khan (PW4) to record their presence and be witness to the proceedings. Thereafter, the accused hav ing been found on the road, identification memo in Ex. P5 was prepared and then a notice in Ex. P6 was given to the appellant informing that information has been re ceived that appellant is possessed oi ganja and brown sugar and selling and was asked whether he wanted his search to be made by a gazetted officer or by a Magistrate or by the Assistant Sub Inspector, whereupon, the appellant gave his consent for being searched by A.S.I, by recording the same in writing on the notice under signature in the presence of witnesses. Thereafter, A.S.I. Bholanath Singh (PW5) was searched by the appellant in the presence of witnesses and search memo in Ex. P7 was prepared. There after Md. Saleem (PW3) & Shahid Khan (PW4) and constables Rakesh Kumar & Pushpraj Singh were searched and panchnama in Ex. P8 was prepared. There after, Md. Saleem (PW3) & Shahid Khan (PW 4) searched A.S.I. Bholanath Singh (PW5) and panchnama in Ex. P14 was pre pared. After completion of the search of team of police and panch witnesses, the ap pellant was bodily searched and from pocket of Kurta worn by him, 2 small packets of brown sugar were recovered and ganja was recovered from a plastic bag carried by the appellant in his hand. Search memo in Ex. P9 was prepared. Visual and smell identifi cation was carried out and it was identified as ganja and brown sugar. A panchnama in Ex. P10 was prepared to this effect. Con traband was then weighed and sealed and a panchnama was also prepared vide Ex. P12. Thereafter, the contraband was seized vide seizure memo of Ex.Pl3. A de.hati nalishi was recorded at the spot vide Ex. P15 and map of the spot was also prepared vide Ex. Pll. The appellant was arrested and a memo in Ex. P16 was prepared. Rea sons for arrest were recorded vide Ex. P17 and information of such arrest was given to the wife of the appellant vide E".P18. First information report in Ex. P19 was then re corded in the police station and information was sent to Special Court vide Ex. P20 and the details of search, seizure and arrest were forwarded to the City Superintendent of Police vide Ex.P3. Seized article were handed over to the custody of Malkhana Moharrir of the police station and an ac knowledgment of receipt in Ex. P4 was ob tained. In Ex. P5 (C), entry regarding de posit of seized article in Malkhana was re corded, which related to rqjnamcha sanha No. 1285 in Ex. P26. City Supen'utendent of Police checked the seal packets which were found intact, which fact was recorded in rojnamcha sanha No. 2094 (Ex. P28). Then an entry with regard to dispatch to Foren sic Science Laboratory (FSL) was made in Malkhana Register vide entry in Ex.P29. The F.S.L. report was received from F.S.L. in Ex. P22 wherein 2 sealed packets articles A & B which were found sealed as per the sample of seal were found containing ganja (packet A) and heroin (packet B).

(3.) After completing usual investigation, a charge sheet was filed. The learned Spe cial Court on the basis of material and po lice report, framed charges against the ap pellant alleging commission of offense un der Section 20 (b) & 22 of the N.D.P.S. Act. The appellant abjured his guilt and pleaded innocence.