KANIRAM Vs. STATE OF M P

JUDGEMENT

(1.) Accused appellant has directed this appeal against the judgment dated 15-2-1998 passed by Sessions Judge and Special Judge, Mandsaur in ST. No. 12/88, thereby convicting accused-appellant Kaniram for the offence punishable under Sections 8/16 of NDPS Act and awarding sentence to undergo R.I. for 10 years.

(2.) Briefly stated the facts of the case are that on the intervening night of 26 and 27th October, 1987, at about 2.50 a.m. the appellant was intercepted by Constable Bachusingh and NCO Dilip of the Home Guard near Kalakhet Mandsaur. At the relevant time, Constable Bachusingh and NCO Dilip were on patrolling in the area. On being intercepted they found that the appellant was having a cotton bag in his hand and the Constable Bachusingh, on preliminary search suspected opium being carried in the same bag. It is said that when the appellant was intercepted by the Constable Bachusingh, T.I. Harmendarsingh Billa (PW. 5) alongwith S.I. Siddique also reached the place of the incidence. Constable Bachusingh informed T.I. Harmendra singh Billa (PW. 5) that he suspected opium in the bag carried by the appellant. Thereafter T.I. Harmendra Singh Billa called the independent Panch witnesses and in presence of the witnesses searched the bag carried by the appellant and seized about 5 kgs and 200 gms. of opium from the possession of the appellant by seizure memo Ex. P.1. kept in four polythene bags. The samples were taken from the seized contraband article and sent for analysis to the Govt. Opium and Alkaloid Factory Neemuch from where analysis report (Ex. P.4) was received. The analysis report disclosed that the seized article is opium. The accused was arrested. The FIR was registered and on completion of the investigation, the appellant was prosecuted and tried for the offence punishable under Sections 8/18, NDPS Act. On completion of the trial, the appellant was convicted and sentenced by the Trial Court as indicated above Aggrieved, the appellant has filed this appeal.

(3.) Learned Counsel for appellant contended that in this case during the search and seizure, the Investigating Officer did not comply with the mandatory provisions of Sections 50 and 57 of the NDPS Act. He also contended that in this case the prosecution relied on the analysis report Ex, P.4 given by the Assistant Chemical Analyst of the Government. Opium and Alkaloid Factory, Neemuch, not admissible in evidence in view of the provisions of Section 293 of Cr. P. C. and the whole trial vitiates against the appellant and the appellant deserves to be acquitted. The learned Counsel relied on the following decisions of the Honourable Supreme Court. Kalayathnassar v. State of Kerala, Ali Mustaffa Abdul Rahman Moosa v. State of Kerala and Mehmood v. State of M.P.