BUDDHARAM AND ANOTHER Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS appeal is directed against the impugned judgment; order of conviction and sentence recorded by Special Judge Neemuch in Special Case No. 50 of 2002, wherein and whereby appellant Budharam has been found guilty for commission of offence under section 8/18 and in the alternative under section 18(b) and section 8/25 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter shall be referred to as the 'Act') and sentenced him to undergo R.I. for ten years and fine of Rs. One Lakh; in default to further undergo R.I. for two years. Appellant Madhu has also been found guilty for commission of offence under section 8/18(b) and sentenced him to undergo R.I. For 10 years and fine of Rs. One Lakh; in default to further undergo R.I. for two years. The prosecution case in short is that on receiving the secret information, on 12 -11 -2007 Supdt. Satyaveer and Sub Inspector Nanakram along with preventive party reached at Ratangarh Singroli Naka at about 8.30 a.m. Both the appellants were coming on a Motorcycle bearing registration No. RJ 22 IM 9671. They were intercepted by Sub Inspector Nanakram; their names and addresses were ascertained. Sub Inspector Nanakram informed both the appellants that he has information that both the appellants are in possession of opium and intend to take search. Both the appellants were also apprised with regard to their right to be searched in presence of a Magistrate or any Gazetted Officer and were also informed that Mr. Satyaveer. Supdt. of Narcotics is also a Gazetted Officer. Both the appellants have given their consent of their search. A memorandum of their consent was prepared and thereafter both the appellants were searched. Appellant Madhu was having a Bag on his shoulder. When it was opened, it contained Opium in a plastic bag. On weighment it was found 4.500 kg. Two samples of 24 gms of seized opium were taken and sealed separately. The remaining opium was sealed and seized. Statements of both the appellants were recorded under section 67 of the Act and they were arrested. Both the appellants have stated that they have equal share of the seized opium. Report Ex. P.9 of the entire proceedings was sent by Sub Inspector to the Supdt. of Preventive Party which has been treated as F.I.R. One packet of sample was sent to the Opium and Alkaloid factory Neemuch for chemical examination. According to the examination report (Ex. P.20) the seized contraband was found opium and opined that it contained 4.90% Morphine. After completing usual investigation, charge -sheet was filed. Both the appellants were tried and convicted as aforesaid.

(2.) LEARNED Counsel for the appellants assailed the findings recorded by the trial Court mainly on the ground that the seized samples were not kept in the safe custody i.e. Malkhana. It has also been contended that provisions of sections 42 and 50 of the Act have not been complied with. Learned Counsel has also argued that statements under section 67 of the Act are of no avail to the prosecution and the statement given by appellant No. 2 Madhu cannot be used against appellant No. 1 Buddharam as a piece of evidence. It has also been contended that nothing has been recovered from the possession of appellant No. 1 Buddharam. The confession made by appellant Madhu before Raiding Party, can only be used against appellant Madhu and not against appellant Buddharam. Per contra, Learned Public Prosecutor Mr. G. S. Chouhan appearing for respondents State has supported the findings recorded by the Trial Judge and argued that the Raiding Party was headed by Supdt. of Narcotics Department who himself was a Gazetted Officer. The evidence adduced by the prosecution shows that all the mandatory provisions of the Act have been fully complied with and there was no necessity of compliance of the provisions of section 50 of the Act, as nothing has been recovered during personal search of any of the appellants. The alleged contraband was recovered from the bag which was carried by appellant Madhu on his shoulder.

(3.) I have anxiously gone through the statements of prosecution witnesses and the documents proved by prosecution during trial. Nanakram (PW -1) Sub Inspector has deposed in clear words that he had intercepted both the appellants who were coming on a motorcycle at Singroli Naka. Their names and addresses were ascertained. It was found that both the appellants are the same persons regarding whom secret information was already received and recorded. Mr. Satyaveer, Supdt. of Narcotics has also corroborated PW -1 Nanakram. He has deposed that secret information was received by him which was recorded as Ex. P.13 and he was informed that two persons were coming by Motorcycle bearing Registration No. RJ -22 -IM -9671 carrying with them 5 -6 kg. of Opium from Ratangarh. At Singroli Toll Tax Naka they have been intercepted and alleged opium was found in their possession and recovered from them. The evidence of both these witnesses proved that provisions of section 42 of the Act have been fully complied with. So far as the question of compliance of the provisions of section 50 of the Act is concerned, it is well settled that when the contraband is not recovered in a personal search and it is recovered from a bag, then, it is not necessary to comply with the provisions of section 50 of the Act. The provisions of section 50 of the Act would not be applicable in the case in hand, because, this was not a case of personal search and the bag which was to be searched by SHO, which the appellant was carrying on his shoulder and the contraband was recovered from that bag. It is now well settled that in case of search of a bag or other article or of the house of any person, it is not necessary to inform the person concerned that he may be taken to the nearest gazetted officer or to the Magistrate. In the matter of Kalema Tumba vs. State of Maharashtra, : (1999) 8 SCC 257, the Apex Court has observed as under: ............ It was submitted by her that the appellant was not told before the search by the officers of the Narcotic Control Bureau that he had a right to be searched in the presence of a Gazetted Officer or a Magistrate. This contention deserves to be rejected because only when the person of an accused is to be searched then he is required to be informed about his right to be searched in the presence of a Gazetted Officer or a Magistrate. As rightly pointed out by the High Court search of baggage of a person is not the same thing as search of the person himself.