MANOHARLAL MEHRE Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) BEING aggrieved by the judgment dated 28-11-2000 passed in Special Case no. 4/2000 by Special Judge (NDPS) and Additional Sessions Judge, Gwalior, whereby convicted the appellant under Section 8/15 of the Narcotic Drugs and psychotropic Substances Act, 1985 (hereinafter, referred to as 'the Act') and sentenced to 10 years' R. I. with fine of rupees one lac; in default of payment of fine further to two years R. I. ; the appellant has filed this appeal.

(2.) AS per prosecution story, on 16-2-2000 Incharge of Police Station g. R. P. , Gwalior received this information from Station Superintendent that in train No. 2155 Dn. presence of bomb has been suspected and the train is standing at Rairu Station near Gwalior. On receiving this information Incharge g. R. P. went to Rairu Station and searched Bogie No. CR 99420 and while searching one broken suitcase was lying in the laboratory. Thereafter, intensive checking was conducted. They found two suspected persons under perplexed condition and trying to hide here and there. In suspicion they were interrogated in presence of Panchas. One person told his name as Manoharlal. Thereafter, notice of search was given and after obtaining his consent his bag of grey colour was searched. Inside a plastic packet 12 packets of poppy husk were found in plastic bag under a cloth of white colour. Seizure memo was prepared on spot and thereafter material was weighed and weighing Panchnama was also prepared, 100 gms, each from every packet by way of sample was taken out and sealed by Ex. P-6. The accused was arrested and the seized material was referred for chemical examination to Forensic Science Laboratory, Sagar. According to its report Ex. P-10 it was found as poppy straw. Thereafter, charge-sheet was filed against the appellant. Before the Trial Court the appellant was charged under Section 8/15 of the Act. Appellant abjured his guilt. Prosecution examined 4 witnesses and after considering their evidence the Trial Court found the appellant guilty of the offence, convicted and sentenced him as aforesaid, against which he was preferred this appeal.

(3.) I have heard Shri Pawan Vijayvergiya, learned Counsel for the appellant, and Shri V. G. Khot, learned Government Advocate for the respondent-State. Learned Counsel for the appellant argued and submitted that the prosecution witnesses Ramesh and Vidya Sagar were declared hostile and have not supported the prosecution and the evidence of Suresh is not reliable. There is no evidence about the quantity seized and kind of material seized. There is delay in sending the material for chemical examination. There is no compliance of mandatory provisions of Sections 50 and 57 of the Act. He submitted that search of handbag or the like which a person is carrying amounts to search of his person attracting Section 50 and he placed reliance on a decision in the case of Namdi Francis Nwazor Vs. Union of India and another, reported in 1998 SCC (Cri.) 1516; and, in support of his contention on the compliance of section 57 of the Act he placed reliance on a decision of the Supreme Court in case of Gurbax Singh Vs. State of Haryana, reported in AIR 2001 SC 1002, and submitted that the appellant is liable to be acquitted. Alternatively, he submitted that as per the decision of this Court in the case of Ramesh Vs. State of M. P. and another, 2003 (4) M. P. H. T. 78 (DB) = 2004 (1) JLJ 133, the provisions of amendment Act No. 9 of 2001 are applicable to the cases of appeal and the quantity as per the prosecution case which was around 12 kg. is below the commercial quantity of 50 kg. and in that case the jail sentence can only be upto 10 years and since the appellant has already suffered jail sentence of more than 5years, he be released on undergone jail sentence and sentences of fine amount be set aside.