SANJAI KUMAR Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This appeal was filed by the appellant Sanjay Kumar against his conviction under Section 18 of Narcotic Drugs and Psychotropic Substances Act and consequent sentence of 10 years R.I. and a fine of Rs. 1,00,000.00. In default of payment of fine he was to undergo further imprisonment for 2 years.

(2.) Brief facts of the case are that Excise Inspector Sri S. K. Mishra was on a routine check of the excise shops in Mohalla Moosa Nagar circle alongwith the members of his staff Constable Vishambhar Nath Upadhyay, Sheo Charan, Brijpal Singh, Prem Singh and Shiv Kumar Tiwari. At about 12.00 in thenoon he learnt from an informer that in Moosa Nagar Mohalla Charas and opium are freely sold. On receiving the abovesaid information he has prepared its memo Ex. Ka-1. After preparing the memo he proceeded to the spot and reached the shop of the appellant. He picked up three persons from amongst the public present in front of the shop as public witnesses. After disclosing his credentials he asked for the search of his shop. He asked the appellant whether he wants to give his search to the Inspector himself or required the search to be conducted by a Gazetted Officer. When the appellant told him to make the search himself, the search was conducted and seizures were made. In the search of the person of the appellant 40 small packets of opium and 22 packets of Charas were recovered. Thirteen small packets of Bhang was recovered from a packet which was found at the foot of the cot. In the search of the shop from the wall of another room 100 small packets each of Charas and opium were further recovered apart from a small cake of Charas. The total weight of opium was found to be about 220 gms. It was sealed in a tin container lying in the shop itself. 122 small packets of Charas were weighed and was found about to be 300 gms. They were also sealed in a dry milk container which too was lying inside the shop. Both tin containers were wrapped independently in separate pieces of cloth and seales were put on them. The seizure memo as well as statement of the Excise Inspector shows that no signatures of the witnesses public as well as departmental were obtained on the sealed tin containers or on the cloth which was wrapped around them. Seizure memo shows that a copy of the seizure memo was given to the accused also. After completing the formalities appellant alongwith seized articles was taken to police station Kidwai Nagar. The police took the appellant into custody but declined to accept the seized articles. The reason as disclosed by the Excise Inspector in his testimony is that there was no space in the police station Maalkhana for taking these two small tin packets. After investigation chargesheet was submitted.

(3.) The prosecution had examined in support of its case two witnesses who are Excise Inspector S. K. Mishra. P.W. 1 and Sri Hasan Ali, a Public witness, P.W. 2.