ABDUL GAFFAR Vs. STATE OF M.P.

JUDGEMENT

(1.) THE appellant Abdul Gaffar has preferred this appeal from jail, being aggrieved by the order of conviction and sentence dated 26-8-1993 passed by the Additional Session Judge, Garoth, in S. T No. 92 of 1991. By the said judgement and order the appellant was convicted for an offence under Sections 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and sentenced to undergo ten years rigorous imprisonment and fine of Rs. one lac, failing which it was directed that he shall suffer simple imprisonment for two years.

(2.) PROSECUTION story, in short, is that on 21-12-1990, the Police got information that the appellant was carrying smack and was to go to Kota by Dehradun Train. On receiving the said information the Police party went to the place of occurrence and found the accused-appellant coming towards there. He was intercepted and on en­quiry he disclosed his name as that of the appellant. The appellant was appraised of the fact that he was in possession of smack and he was further informed that the search can be effected in present of a Gazetted Officer or Magistrate. The appellant, it is alleged, has stated that he was ready to give search to the Police itself. It is the case of the prosecution that a packet containing 11 grams of smack was concealed in the cavity of the Chappal of the appellant. The same was seized, Panchanama prepared and the appellant was arrested. The samples were taken from the said packet and were seded. The sample was went to Opium Factory, Neemuch and it was reported that the seized powder contained Heroine. After investigation the Police submitted charge-sheet against the appellant.

(3.) THE prosecution in support of the case has examined eight witnesses. The appellant in support of his case has also examined two defence witnesses. (P. W. 1), Kailash Narayan, was reader in the office of the S. D. O. P. and he has stated that the information received by the Police about the carrying of the smack was received by him in his office (Ex. P-1). He has further stated that the information about the arrest of the appellant as also the seizure of smack was received by him (Ex. P-2). PW 2, Ramnarayan, is a witness of seizure and he has been declared hostile at the instance of the prosecution. PW 3, Ramswaroop, is a Head constable and he has stated that he has received the seized articles for deposit in the Malkhana. He has further stated that he has taken the sealed sample of F. S. L., Sagar for examination. He has further stated that one of the sealed sample was taken by him to the Government Opium and Alkaloid Works, Neemuch. PW 4, Sebesjiyan, is another Constable, who has stated that one of the packets of the sample and a copy of the seal was carried by him and deposited on the Alkaloid Factory, Neemuch by him and he has taken receipt of the same. PW 5, Kanhaiyalal, is a Police Constable, who has stated in his evidence that he was asked by the Sub-Inspector of Police to take the Panchnama of the informer's information to the S. D. O. P., Garoth and he has handed over the same to the Reader of the S. D. O. P. PW 6, Pitambar das, is another constable, who was a witness to the Panchnama and was also a witness to the entire operation of the Police. He has stated in his evidence that the A. S. I. has called him at the Police Station and informed about the information received that the appellant is a resident of Kota and was carrying smack and was to go to Kota by Dehradun Train. This witness has further stated that the A. S. I. has stated about the dress worn by the appellant. In this evidence, this witness has stated that they were sitting on the seat of the Jeep, a person of the description, given by the informant, was seen coming and he was surrounded. The A. S. I. asked his name and he disclosed his name to be Abdul Gaffar i. e., the appellant. This witness has further stated that the A S. I. informed the appellant that he has the right to get himself searched in presence of a Gazetted Officer, but he opted to give search in presence of the A. S. I. himself. On search this witness has stated that there was a packet containing powder kept in the cavity of the Chappal of the appellant. This witness, the A. S. I. and the other Panch witnesses smelt the powder and according to their assessment the same was smack. Thereafter, the smack was weighed, samples were collected and sealed, the Chappal of the appellant was also seized. Information about the institution of the case was also given to the S.D.O.P. PW 7 Sitaram, is a witness to the seizure and has stated that the appellant was ap­prehended by the Assistant Sub-Inspector of Police and the said A.S.I. asked the appellant that according to the information he is in possession of the smack. This witness has also stated that the appellant volunteered to be searched by the Police Officer. On search this witness stated that nothing was recovered from the clothes worn by the appellant but one plastic packet was recovered from the cavity of the Chappal which the appellant was wearing. The packet contained smack. Seizure list was prepared and samples of that was taken and sealed. This witness identified the appellant in Court. PW 8, Rajendra Singh Sikarwar, is Assistant Sub-Inspector of Police, who has stated about the information received by him by the informer and according to him, description of the clothes worn by the appellant was also given by the informer. He has entered the said information in the Rojnamcha (Ex. P-1) and he has further stated that the said Rojnamcha entry was forwarded to the S. D. O. P. Thereafter, according to this witness, he along with the Police Constables, (P. W. 2) and (P. W. 3) went towards the Railway Station and sat near the water tank, which was close to the Railway Station. It is stated by this witness that a person having the same description as was given by the informer was seen coming. He stopped the said person, who disclosed his name to be that of the appellant. This witness has stated to the appellant that he has right to get himself searched before a Magistrate or a Gazetted Officer but the appellant offered to get himself searched by the said witness. He had searched the appellant but nothing was found in the clothes worn by him. However, a plastic packet was found in the cavity of the Chappal of the appellant. It was tested and smelt by him as also by the Panch Witnesses, who found the said powder to be smack. Fie prepared samples of that and arrested the appellant. The sample was sent to the Opium Factory, Neemuch and a report was received. The appellant was taken to the Police Station and the entry was made and the S. D. O. P. was informed about the seizure and arrest of the appellant. He has produced the report to the Opium Factory, Neemuch (Ex. P-16).