PARDESHI RAM Vs. STATE OF M P

JUDGEMENT

(1.) This appeal is directed against judgment of conviction and order of sentence dated 10.7.1997 passed by the Additional Sessions Judge, Mahasamund in Special Criminal Case No. 17/ 1996 whereby appellant has been held guilty of commission of offence under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and sentenced to undergo R.I. for two years with a fine of Rs.2,000, in default, additional simple imprisonment for three months.

(2.) Case of the prosecution is that upon receiving information on 4.10.1995 that the appellant is engaged in cultivating ganja and selling from his own house in village Aamgaon, information was recorded in writing and the Investigating Officer along with his team proceeded to the scene of occurrence, where in presence of panch witnesses, enquiry was made and ganja trees alleged to be cultivated in the Kitchen Garden of the appellant were seized. 190 Grams of ganja was also seized from the house of the appellant. Proceedings of search and seizure were drawn and after recovery of ganja, followed by seizure, dehati nalishi was recorded and appellant was arrested and FIR was lodged in Police Station Tumgaon against the appellant, alleging commission of offence under Section 20(b)(i) of the Act. Investigation was completed; chargesheet was filed in the Court of Judicial Magistrate First Class, Mahasamund, who committed to the Court of Additional Sessions Judge. Charges were framed against the appellant alleging commission of offence by the trial Court. The appellant abjured his guilt. In order to prove its case, the prosecution has examined Ram Swarup, PW1, Bansh Ram, PW2. Uddhav Soni, PW3, Patras Kerketta, PW4, Ram Niwas Kerketta, PW5, Joginder Singh, PW6 and Hemchand Verma. PW7.

(3.) Assailing the correctness and validity of the judgment of conviction and order of sentence, learned Counsel for the appellant submitted that there is violation of mandatory provisions contained in Section 42(2) of the Act, as information has not been sent to the next superior officer. Learned counsel for the appellant further contended that there is a violation of statutory mandate of Section 50 of the Act, as the appellant was not informed of his right to be searched by a Gazetted Officer or by a Magistrate. Learned counsel for the appellant argued that compliance of mandatory provisions with regard to sealing and safe custody of the ganja and sample drawn therefrom could not be proved by the prosecution beyond reasonable doubt and therefore possibility of tampering of the sample of ganja could not be ruled out in the facts and circumstances of the case. Moreover, there is no evidence led by the prosecution with regard to safe deposit of contraband in Malkhana. It has been strenuously urged by learned counsel for the appellant that as the entire case of the prosecution suffers from serious discrepancies, violation of mandatory provisions contained in Section 42(2), 50, 55 as also Section 57 of the Act and that the testimony of Investigating Officer is also not trustworthy and not corroborated from other circumstances, and further that the independent witnesses have not supported the case of the prosecution with regard to seizure of contraband from the possession of the appellant, the appellant is entitled to be acquitted by giving him benefit of doubt. Learned counsel for the appellant has relied upon decisions in the cases of Gouind Ram v. State of C.G., 2007 1 CgLJ 272.