BIHARILAL SAHU Vs. STATE OF M P

JUDGEMENT

(1.) THIS appeal is directed by the appellants under Section 374(2) of the Cr.P.C. being aggrieved by the judgment dated 6.5.2005 passed by the Special Judge, Sidhi in Special Case No.19/2004 convicting him under section 20(b)(ii)(B) of the NDPS Act (in short 'the Act') for RI 2 years with fine of Rs.3000/-, in default of depositing the fine, for further RI three months.

(2.) THE case of the prosecution in short is that on dated 10.10.04 Shri Satish Kumar Dwivedi (PW 3) Station House Officer, Police Station Mada, on receiving the information, from the informer that appellant being in possession of contraband substance the Ganja, is bringing the same from Amhara-Makrohar Road, prepared the panchnama of it. After sending the information of the same to the SDO(P) Singrouli, by preparing all the requisite papers as per the procedure of the Act and after making entry of their departure from the Police Station in the Rojnamcha, he accompanied with the police officials as well as the independent witness, went to the aforesaid road. On reaching there, he found the appellant there. After giving him the aforesaid information, he was asked and intimated regarding his right to carry-out his search in presence of the Magistrate or the Gazetted Officer, for which requisite panchnama was also prepared, on which, instead to carry-out his search from the above mentioned officials, he opted his search from the above mentioned Police Official for which a separate panchnama was prepared. THEreafter, the police official along with the independent witnesses, after giving their search to the appellant, carried-out the search of the appellant. In such search the contraband substance was found in possession of the appellant. On verification, the same was revealed to be the contraband substance the Ganja. On weighing the same, it was found to be 1.500 Kg in weight. Out of it, two different packets of 50 grams each were prepared. Subsequently the same were sent to FSL Sagar for chemical examination. On carrying-out the same, it was revealed to be the Ganja. At every stage, as per procedure, the requisite panchanama and papers were prepared in presence of the independent witnesses. After completing the seizure proceedings on the spot, the appellant along with the seized substance, was brought to the Police Station, where after making the entry in the Rojnamcha sanha regarding their arrival at the Police Station, the FIR was registered against the appellant for the above mentioned offence and the seized substance was kept in the safe custody of Malkhana of such Police Station from where the same was sent, through police officials, to FSL Sagar as stated above. After receiving the report from FSL Sagar, on completion of the investigation, the appellant was charge sheeted for the offence under section 20(b)(ii)(B) of the Act.

(3.) ON the other hand, Shri Vivek Lakhera, learned Panel Lawyer, in response of the aforesaid argument, by justifying the impugned conviction of the appellant under the aforesaid provision, said that the same being based on proper appreciation of the evidence does not require any interference at this stage and prayed for dismissal of this appeal. However, he fairly conceded that in view of the quantity of the seized substance, the sentence of two years awarded by the trial court is at higher side and therefore he did not have any objection if the same is reduced reasonably keeping in view the seized substance and the ratio of the aforesaid provision of punishment. Such specific submission of learned Panel Lawyer is taken on record.