BALKRISHNA NAIK Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Appellant Balkrishna Naik has been convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as the Act and sentenced to rigorous imprisonment for ten years and to a fine of Rs. 1,00,000/-. In default of payment of fine he has been sentenced to rigorous imprisonment for two years.

(2.) It is no longer in dispute that houses bearing number EWS/17 and 18, in Sudhar Nyas Colony, Katni are of the ownership of accused No. 1 Rajkishore Naik who has been acquitted by the trial Court. Accused No. 2 Balkrishna Naik who is appellant herein is the brother of wife of Rajkishore Naik. On 18-9-1996, the Assistant Commissioner, Customs and Central Excise, Jabalpur in exercise of the powers under Section 41 of the Act issued the search warrant Ex. P-1 authorising Sharad Tripathi (P.W. 1), Inspector of Customs and Central Excise, Jabalpur to take search of the houses mentioned above. In this warrant it is mentioned that these houses are said to be in possession of accused Balkrishna Naik. In pursuance of this warrant the search of these houses was made on the same date. Accused Balkrishna Naik was not found in the house at the time of the search. He was not present when the search was taken. The houses were locked. The key of the lock was with accused Rajkishore Naik. He opened the lock for the search of the houses.

(3.) The prosecution case is that 600 grams of opium was found in house No. 17. It was seized as per seizure memo Ex. P-2 in the presence of two witnesses S.D. Garg (P.W. 2) and Harish Kumar (P.W. 8), and other officers of the Central Excise Department. The statement of accused Rajkishore Naik was recorded under Section 53-A of the Act by S. K. Shukla (P.W. 3), the Superintendent, Central Excise, Katni and that is Ex. P-4. According to this statement the house was in actual possession of accused Balkrishna Naik. The samples of the opium were taken and sealed. These were sent to the Assistant Chemical Examiner, Neemuch and as per report Ex. P-7 the commodity which was seized was found to be opium. The information relating to search and seizure was sent to the Assistant Commissioner as per Ex. P-5 in compliance with Section 57 of the Act.