MATTA PRASAD Vs. STATE

JUDGEMENT

(1.) The appellant/accused was charged with Section 8(c) r/w Section 17 of Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter in short referred to as "Act" for the purpose of convenience and convicted and sentenced to undergo Rigorous Imprisonment for a period of ten years and a fine of Rs. 1,00,000/- also had been imposed, in default to suffer Imprisonment for three years by Judgment dated 20-11-1998 in S.C.No. 40/98 on the file of Special Judge for Cases under Narcotic Drugs and Psychotropic Substances Act-cum-Metropolitan Sessions Judge, Visakhapatnam. Hence the Criminal Appeal. Facts:

(2.) P.W. 4, Prohibition & Excise Inspector, Visakhapatnam, Station-l, on receipt of credible information about the crime under the Act on 12-8-1998 made an entry in the General Diary, sent information to superiors, secured the presence of mediators P.W. 1 and another Subbaraju, proceeded along with Sub-Divisional Inspector, his staff and mediators in two jeeps to Panja junction of Chengalraopeta in Visakhapatnam City. It is - also the version of the prosecution that all of them laid in wait at Ganneru veedhi near the junction and at 4 p.m.they noticed theaccused coming on a scooter and stopped in front of atiled house bearing D.No. 21.29.12 situate by the side of Ganneru veedhi and immediately the raiding party rushed towards the accused and surrounded him and P.W. 4 stated to the accused that he received information about the accused transporting opium and that he is proposing to conduct a search of the scooter possessed by him. P.W. 4 further informed the accused that he brought P.W. 1 Dr. D.S. Patnaik the Casualty Medical Officer, King George Hospital, Visakhapatnam, who is a Gazetted Officer with him and if he agrees the search will be conducted in his presence he would further proceed and the accused accepted for the search before the said Dr.D.S. Patnaik- P.W. 1, and P.W. 4 served the search notice on the accused in the presence of mediators and proceeded with search of the scooter of the accused. It is also the version of the prosecution that the dickey of the scooter bearing No. AP-31-M-4422 possessed by the accused at the relevant point of time was opened and three opium slabs were found in the front dickey of the scooter and on interrogation by P.W. 4 the accused disclosed his identity and stated that he purchased the opium from one Mr. Hussain of Orissa State at the rate of Rs. 5,000/- per 1 Kg. at Visakhapatnam Railway Station and he would sell the same for profit. It is also the version of the prosecution that the accused stated he had been doing the said business since five years for eking out his livelihood. Then P.W. 4 sent L.W. 7 Prohibition & Excise Head Constable to get the weighing machine and the weighing man and P.W. 2 was brought who weighed the opium slabs and certified that the first opium slab was weighing 2.350 kgs., the second opium slab was weighing 2 kgs. and the third opium slab was also was weighing 2 kgs. and issued certificate that the total weight of opium was 6.350 kgs. P.W. 4 took two samples of 100 gms. each from each opium slab, covered the samples and the opium slabs in polythene papers, sealed them and affixed identification labels and seized the contraband and the scooter and affected arrest of the accused under the cover of mediators report Ex.P-1 drafted at the place of occurrence. He brought the accused and the property seized and the mediators report to the Excise Station at 6.30 p.m., registered a case in P.R.No. 182/ 97-98 under Section 8(c) r7w 17 of the Act and forwarded the original FIR and original mediators report to the Court and also produced the accused and property before the Court along with the remand report and sent the information regarding the registration of crime to his superior officials and sent the sample packets to the Chemical Examiner, Visakhapatnam through Courtforanalysis. It is also the version of the prosecution that the further investigation revealed that P.W. 1 is the owner of the scooter aforesaid and it is also stated that P.W. 3 had stated that the accused was his class mate in Intermediate and he gave the scooter to the accused. The Chemical Examiner after due analysis of the contents of the samples opined that they are opium and after completing the investigation P.W. 6 lodged the charge-sheet. On appreciation of the evidence available on record, the learned Judge had recorded the conviction and sentence as aforesaid. Hence the Appeal. Evidence on record:

(3.) P.W. 1 is the mediator, a Gazetted Officer i.e., Dr. D.S. Patnaik, P.W. 2 is Sri Appalraju who weighed the opium, P.W. 3 is Sri Kanaka Prasad, owner of the scooter, P.W. 4 is Sri Bhaskar Rao, Prohibition & Excise Inspector, P.W. 5 is Sri Ramana, Prohibition & Excise Inspector and P.W. 6 is Sri Prem Prasad, Sub-Divisional Prohibition & Excise Inspector. Ex.P-1 is the mediators report, Ex.P-2 is the weighment certificate, Ex.P-3 is a carbon copy of search notice, Ex.P-4 is FIR in P.R.No. 182/97-98 of Excise Station, Circle I, Visakhapatnam, Ex.P-5 is a copy of letter of advise forwarding M.Os. 5 to 10 to the Chemical Examiner, Ex.P-6 is the report of Chemical Examiner and Ex.P-7 is the rough sketch of the scene of offence. M.O. 1 is the Bajaj Chetak scooter bearing No. AP-31 -M-4422, MOs. 2 to 4 are packets containing 2 kgs. of opium, MOs. 5 to 10 are sample packets and MO-11 is one key chain with keys of MO.1. Findings recorded by the learned Judge: