LAWS(MPH)-2010-9-97

KISHORILAL Vs. STATE OF M P

Decided On September 08, 2010
KISHORILAL Appellant
V/S
STATE OF MADHYA PRADESH Respondents

JUDGEMENT

(1.) This appeal has been preferred under S. 374 of Cr.P.C. being aggrieved by the judgment dated 4.11.2006 passed by the Court of Shri Sanjiv Datta, Special Judge, (NDPS Act), Indore in Spl. Case No. 33/03 by which the appellants Kishorilal and Devisingh have been found guilty under S.8/20(b)(2)(c) of the N.D.P.S.Act (for short the Act) and sentenced to rigorous imprisonment of 10 years along with fine of Rs.1,00,000/- (one lakh) to each and in default of payment of fine, to undergo further imprisonment for four months to each.

(2.) According to prosecution story Shri SS Bhadoriya ASI , Police Station, Pandharinath, Indore in the morning of 21.10.03 at 10.30 a.m. received an information from the informer that Kishorilal and Devisingh resident of Kullu Manali are standing near Taj Building with Cannabis (hemp) (Charas) and waiting for customer. The information was entered in the Rojnamcha. He prepared a Panchnama of the information of the informer and information was sent to C.S.P. Sarafa. He alongwith constable Sanjay, independent witnesses and force reached Mohanpura Taj building. They found two persons standing there. After verification of their names as Kishorilal and Devisingh they were apprised with the information of the informer and after obtaining their due consent for the search, bag of Kishorilal was searched. In this bag in a polythene bag, 2 kg. 800 gms. of cannabis (hemp) (Charas) was found out of which 2 samples of 100 gms. each were prepared and sealed and marked as articles A1, A2. Remaining quantity was sealed in a polythene bag and marked as article A. All the packets were sealed and seized. Kishorilal was arrested. Devilal was also apprised of the information of the informer and after obtaining his consent for search, bag contained by him was searched in which in a polythene bag 2 kg. 500 gms. of cannabis (hemp) (Charas) was found out of which 2 samples of 100 gms. each were prepared and marked as articles B1,B2 and remaining quantity was sealed in a polythene bag and marked as article B. All the packets were sealed and seized. Devilal was arrested. The other Panchnamas were prepared and raid party returned to police station. The report was lodged at Crime No. 280/03. On interrogation Kishorilal informed that he has delivered one kg. Charas to Babulal Bagora. Memorandum of information was prepared and Babulal was searched. He was found standing before Raj Medical Store. After identification by Kishorilal, he was apprised with the information and after obtaining his due consent, one kg. Charas was found in a plastic bag; out of which 2 samples 100 gms. each were prepared and marked as articles C1,C2 and remaining quantity was packed and marked as article C. All the packets were sealed and seized on the spot. Babulal was arrested. Thereafter raid party returned to police station. Samples A1, B1, C1 were sent to FSL Indore by the report of which presence of Charas was confirmed. Hence after completion of investigation, challan was filed. After trial appellants have been convicted as mentioned above.

(3.) It has been argued on behalf of the appellants that the independent witnesses were hostile. They did not support prosecution case. Bulk quantity packets were not produced at the time of evidence. Only samples A2,B2,C2 and remnant samplesA1,B1,C1 were produced at the time of evidence. Hence seizure of Charas was not proved by the evidence. There was non-compliance of S.55 of the Act. Property was sent after two months to Court for which no explanation was given. Proceedings under S. 52A of Act was not proved. Appellants Kishorilal and Devising were in custody of police since night of 20.10.2003 and this news was published in the news paper "Agniban" on 21.10.2003. Hence appellants have been falsely implicated in the case. Hence appeal be allowed.