STATE OF M.P. Vs. STATE

JUDGEMENT

(1.) THIS appeal against acquittal is directed against the Judgment dated 5th December, 1988 delivered by the Sessions Judge, Mandsaur in S.T. No. 72 of 88, thereby acquitting the accused -respondent of charge under S. 8/18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as the N.D.P.S. Act.)

(2.) BRIEFLY stated, prosecution case was, on receiving information on 1.6.1987 that the accused respondent would be taking out about 10 kgs. of opium from a debry near his well to his house in village, Nagari, the same was recorded in presence of panchas, but admittedly the intimation was not forwarded to the Superior Officer as required by S. 42(2) of the N.D.P.S. Act. On receiving the above information Chowky -incharge Bahadur Singh along with panch witnesses Lokendra and Rampratap proceeded to the spot - They found that the accused picked up a fertilizer bag from a heap of rubbish and started towards the village. He had hardly walked when he was pounced upon by the police party who seized the fertilizer bag. On opening same it was found that it contained 9 kgs 860 gms of opium. It was subjected to physical tasting. Samples were taken and forwarded to the Alcoloid Factory at Neemuch for chemical analysis and report. At per Ex. P -l0 the report dated 31.7.1987 the articles seized was quantitatively and qualitatively found to be opium containing 11.58% of morphine. On completion of investigation the accused was prosecuted and charged before the Sessions Judge, Mandsaur for offence punishable under S. 8/18 of the N.D.P.S. Act.

(3.) HEARD Shri Phadke, learned Panel lawyer for the appellant State and Shri Jaisingh, learned, counsel for the respondent. Referring to S. 54 of the N.D.P.S. Act learned Panel Lawyer contended that possession, should be presumed against the accused whose duty it was to rebut the prosecution. In view of this interpretation as put by the learned Panel Lawyer it was contended that the trial court was palpably wrong in acquitting the accused on the ground that possession of incriminating article, namely opium was not established by the prosecution. The other contention advanced by the learned Panel Lawyer is that S. 42 (2), S. 50 and S. 52 of the Act arc not mandatory in nature as erroneously interpreted by the trial Court. He has placed reliance on a Full Bench decision of this Court as reported in Ramdayal v. Central Narcotic Bureau. Gwalior1.