KISHANLAL CHOUDHARY Vs. STATE OF M P

JUDGEMENT

(1.) These appeals have been preferred by appellants Kishanlal and Budharam being aggrieved by the judgment dated 4-1-2008 passed by Court of Shri Dinesh Nayak, Special Judge, NDPS Act, Neemuch in Special NDPS Case No. 39/05 by which the appellants have been convicted under Section 8/18 (b) of the NDPS Act (for short the Act) and sentenced to Rigorous Imprisonment of 10 years with fine of Rs. 1,00,000/- (One lakh) to each and in default of payment of fine to further undergo R.I. for one year to each. These appeals are being decided by a common judgment as they arise out of a common judgment.

(2.) According to prosecution story on 4-5-05 Ajay Mishra Station Incharge of P.S. Manasa received an information from the informer on telephone that from Bhaurasa and Palsoda, smugglers, after purchasing opium by Truck No. GJ-01-TT-7658 via Zarda Manasa and will be going towards Rajasthan. In this truck behind seat of driver the opium has been hidden in the cavity below the seat. Hence P.R. Patoliya ASI prepared a Panchnama about the information and informed his Superior Officers and reached the spot Aantri Mata Fanta with force and independent witnesses. On arrival of the truck from side of Zarda it was intercepted in which one driver and other person were found sitting. Driver told his name as Budharam and other person told his name as Kishanlal the owner of truck. They were apprised with the information of the informer and after obtaining their due consent for their search, their person and truck were searched. On search of Budharam and Kishanlal, nothing was found. Thereafter truck was searched in which in the cabin behind the driver's seat, two plastic bags containing opium were found. One bag was containing 11 kgs. and other bag was containing 10 kgs. of opium. After making opium homogeneous, two samples of 30 gms. each were prepared and marked as articles Al, A2 and B1, B2 and the bulk quantity packets were marked as article A and B. They were sealed and seized on the spot along with registration book, fitness, insurance policy, permit of the truck. Truck was also seized. Appellants were arrested. On interrogation they told that they purchased the opium from Bhaurasa and Palsoda. Thereafter police party returned to Police Station Manasa where Crime No. 129/05 was registered and property was deposited in the Malkhana. According to information received from Budharam and Kishanlal, Bhagirath was also arrested. One sample articles Al, Bl were sent to FSL by the report of which the opium was confirmed. Motor Cycle No. MP-44-BA-034 of Bhagirath was also seized. Letters were sent to M.P. RTO and Gujarat RTO. After completion of the investigation challan was filed and vide impugned judgment the appellants Budharam and Kishanlal have been convicted as mentioned above and Bhagirath has been acquitted.

(3.) It has been argued on behalf of the appellants that the case was not proved against appellants. The independent witnesses were hostile. Compliance of Section 52-A of the Act was not proved. Only samples A2, B2 were produced at the time of evidence and other samples and bulk quantity packets were not produced before the Trial Court. Hence, the seizure memo was not proved. There was ample evidence that Kishanlal was not owner of the truck but he was falsely implicated in this case. Hence appeal should be allowed.