KAJODI LAL Vs. STATE OF M.P.

JUDGEMENT

(1.) THE appellant having been convicted under Section 8/18 of the NDPS Act and sentenced to a term of ten years R.I. and a fine of Rs. 1 lac and in default two years R.I. by the learned Second Additional Sessions Judge, Guna, on 14.7.93 has preferred these appeals. (Appeal No. 147/93 was filed through Counsel whereas Appeal No. 168/93 was presented through Jail authorities earlier, but it was registered after the appeal filed through Counsel was presented). Both these appeals are disposed of by this common judgment.

(2.) THE prosecution story as unfolded from the material on record is that PW 7, S. K. Dube, was station in charge G.R.P. in September, 1990. PW 3, Uber Chand, PW 5, Ashok Dube, were posted as Constable. In the night of 3.9.90 they were on duty to check the train running between Kotah to Bhpal. It used to reach at Guna Station at 11.30 P.M. on that day it reached Guna at 11.50 P.M. The aforesaid two constables were checking the train and got down at Pagara railway station. When the train was moving from Pagara to Shadhora these two constables saw a person having a bag. They found that he had something heavy in the bag PW 3, Uber Chand, saw the bag and observed that there was something wet. They went up to Ashok nagar in the same bogie and there they got down from it along with the accused. It was 1 AM. He had seen the contents of the bag and after getting it opened found it was about 2 kgs. of opium as it transpired from its perusal and from its smell. Then they gave the bag to the accused and boarded another train i.e. Damoh-Kotah passenger train and brought the accused Kajodi Lal to Guna. The train Reached Guna at 8 AM. They took the accused to the Police Station which was situated at the railway station and met PW 7, S-K. Dube. He thereafter called two witnesses Rahiskhan, PW 1, and Dalbhanjan Singh, PW 2, got the bag opened and recovered the opium measuring 2.50 kgs. It was weighed. The packets were sealed arid the remaining opium was sealed separately. Chits were pasted after obtaining signatures of the witnesses. Panchnama Ex.P-1 was prepared. An FIR Ex. P-4 was lodged by PW 7, S. K. Dube. An intimation was given to the S.S.P., Indore and recovered and opium was kept in the Malkhana. The accused was arrested and arrest memo, P-2 was prepared. The train ticket was also recovered from the accused, Ex.jP-6. On 11.9.90 a sample was sent for examination to Sagar through constable Ram prakash. The expert report is Ex.P-7. It was found that there was 4.68% morphine and the article was opium. After usual investigation charge sheet was submitted. The learned trial Court recorded statements of witnesses examined by the prosecution Heard the parties any after considering the entire material held the accused guilty of the offence punishable under Section 8/18 of the NDPS Act and convicted arid sentenced him as aforesaid. Hence this appeal.

(3.) LEARNED Counsel for the State, on the other hand, contended that com­pliance was made inasmuch as S.K. Dubey clearly stated that he inquired from the accused whether he wanted to be searched before a Gazetted Officer or not.