RAMKISHAN Vs. STATE OF M P

JUDGEMENT

(1.) This appeal is directed by the accused against the judgment and order dated 23-8-1989 passed by A.S.I., Mandsaur in S.T. No. 47/87 whereby the appellant was convicted for offence under Sections 8/18 of the N.D.P.S. Act (For short 'the Act') and sentenced to ten years R.I. and to pay fine of Rs. 1,00,000/-, in default of payment of fine, two years RI.

(2.) The prosecution case, in brief, was that on 22-11-1986 S.H.O. Malhargarh, B.S. Malviya (P.W.9) received information from informant that the appellant Ramkishan was having illegal opium in his house at village Balaguda and entered the same into (Ex. P.5) Roznamcha Sanha No. 799 at 3:00 p.m. and thereafter left for the village Balaguda. He took Panch witnesses Shital Prasad Sindhi (P.W.1), Mangilal watchman (P.W.6) and other witnesses with him and went to village Balaguda. He called the appellant who was at that time in the temple. The appellant came to his house and opened the lock. B.S. Malviya took search at 5:15 p.m. of the house and found 2 'Katordan' (vessels) and 2 plastic bags full of opium hidden under cow-dung. On weighment 3.500 gms. opium was found in one 'Katordan' and 3.300 gms. was found in other Katordan, 2 kg. in one plastic bag and 1.300 gms. of opium in another plastic bag. B.S. Malviya prepared 8 samples, each of 30 gms. He seized the contraband opium vide seizure memo Ex. P.1. He also prepared spot-map Ex. PA. He obtained Ex. P.7 ownership certificate of the house. He (B.S. Malviya) came to P.S. and entered his arrival in Roznamcha Sanha. The samples were sent to Government Opium and Allkaloid works, Neemuch for analysis. The chemical examiner opined vide report Ex. R.8 that the samples contained opium as defined in the Act. After completion of investigation, challan was filed. The appellant pleaded not, guilty. The learned A.S.I. on appreciation of evidence convicted and sentenced the appellant as stated earlier. Hence, this appeal.

(3.) Shri Vivek Singh, LC submitted that the searching officer did not comply with the mandatory provisions of Section 42 of the Act and, therefore, the search, was illegal and it vitiates the trial. He put reliance on A.I.R 1994 S.C. 1872. Shri Khare, learned Dy. G.A conceded that the searching officer B.S. Malviya did not send the copy of the information received from the informant but he contended that this provision was not mandatory.