RAZIYA Vs. STATE OF M P

JUDGEMENT

(1.) This appeal has been preferred by the appellant Razia being aggrieved by the judgment dated 21/03/1997 passed by the Court of Shri S. N. Sharma, 2nd Additional Sessions Judge, Neemuch in S.T. No. 140/1995, by which the appellant has been convicted under section 8/21 of the NDPS Act and sentenced to rigorous imprisonment of ten years along with fine of Rs. 1,00,000/- According to the prosecution story, on 03/11/1995, Shri G.S. Parmar, ASI of police station- Neemuch received an information from the informer that accused Raziya is selling small packets of smack for Rs.20/- each near her house and she may be trapped, hence on this information, he prepared a panchanama about the information and sent constable Rajkumar with a note of Rs.20/- having number 77 V 977850 with his signature and prepared panchanama and sent the information under section 42 of the NDPS Act to SDO(P), Neemuch through constable Arjun Soni. Thereafter, Shri G.S. Parmar ASI alongwith constable Baban Mishra Krushnaram and lady constable Kiran Sharma and other articles of investigation and independent witnesses proceeded towards the house of the accused and waited for indication of constable Rajkumar. Constable Rajkumar in civil dress went to the house of Raziya and gave a note of Rs.20/- which she received and took out a yellow colour packet from her kurti and took out a small packet and gave it to Rajkumar. At the same time, Rajkumar indicated by putting the hand on his head. Seeing this, accused Raziya ran towards her house, but she was stopped with the help of police force. Thereafter, in presence of the witnesses and lady constable Kiran Sharma, accused Raziya was informed that she has to be searched on the basis of the information of the informer that she is selling smack. Her consent was obtained and she was apprised with her rights about her search before Magistrate or Gazetted officer and accused Raziya consented for her search before the police. Lady constable Kiran Shrama searched accused Raziya and recovered a plastic bag from the hand of Raziya which contained 46 small packets. On opening of each packet, same type of powder was found, which was collected in a single paper and by smelling testing and burning, it was confirmed as smack prepared from opium. On weightment, its weight found to be 5 grams. It was packed with polythene pack in small cloth packet and sealed by seal of Neemuch Police Station. It was seized and seizure memo was prepared. A chit was applied on it. As the quantity of the smack was very low, therefore the sample was not taken out from it. A note of Rs.20/- was recovered from accused Raziya, which was also seized and she was arrested. On return to police station, a report was lodged at crime No. 505/ 1995 and the smack was sent to FSL for its examination and after receipt of the report from FSL and after completion of investigation, challan was filed. After trial, the appellant has been convicted and sentenced as mentioned herein above.

(2.) It has been argued by the appellant's counsel that the appellant has been falsely implicated in this case. The investigation was defective. The independent witnesses did not support the face of seizure. The arrest memo and seizure memo were tampered documents, on which crime No. 505/1995 was mentioned while they were porepared before the registration of the crime No. 505/1995. The sample was deposited in the malkhana without impression of seal and it was not sent immediately to FSL as per rules and there is no explanation for this delay. The packet of smack was doubtful because at the time of the seizure, colour of the powder was yellow while in the FSL, the powder which was sent was found to be of light grey colour. The samples were not prepared on the spot, while there is discrepancy of evidence in between the statement of Shri G.S. Parmar PW-3 and Kiran Sharma PW-9 in this respect. The. number of note which was taken out from the packet in the Court was different and it was different with the number of note of the seizure memo, which was given by police to constable Rajkumar. There was non-compliance of section 55 and 50 of the NDPS Act, hence the appellant was not liable to be convicted, hence the appeal be allowed.

(3.) It has been argued by the respondent's counsel that there was ample evidence before the Trial Court to convict the appellant and he has been rightly convicted, hence the appeal being devoid of merit, be dismissed accordingly.