MANGILAL Vs. CENTRAL CENTRAL NARCOTICE BUREAU

JUDGEMENT

(1.) Feeling aggrieved by the judgment passed by 1st Additional Sessions Judge and Special Judge, NDPS Act Neemuch dated 10-7-2003 in Special Case No. 79/2002 whereby the appellant has been convicted for the offence punishable under S. 8 read with S. 18(c) or in alternative S. 8 read with S. 18(c) and S. 29 of the NDPS Act and has been sentenced with rigorous imprisonment for 5 years and fine of Rs. 1,000/-, this appeal has been preferred.

(2.) The short facts of the case are that on 3-5-1998 at about 5.00 a.m. in the morning Narcotics Commissioner, Neemuch along with other officers of his department was checking vehicles on Neemuch-Chhitod Road at Ghasundi bus stand, during such checking bus bearing No. RJ-9P/0927 was stopped by the checking party and when passengers were checked then it was found that two persons sitting on seat Nos. 44 and 45 became uncomfortable seeing the checking party. Their name and addresses were ascertained by the checking party and thereafter both of them were brought down from the bus. They were informed that the checking party wants to take their search and they have got a right to be searched in presence of Magistrate or Gazetted Officer, on asking both of them agreed for being searched in presence of Gazetted Officer N.S. Dhruv P.W. 5. A memo under S. 50 of the NDPS Act was drawn obtaining their consent for search, thereafter both of them were searched and it was found that Om Prakash was carrying a polythene bag of fertilizers when that bag was opened then another bag was found inside that bag and in that other polythene bag 2 kg. 400 g. blackish substance was found. When members of the checking party tested and smelled it then it revealed that it was opium. On search appellant-Mangilal was found having two tickets of the bus in his pocket and on inquiry he stated that those journey tickets were for the journey of appellant as well as Om Prakash. Two samples of 30g each were drawn from the opium seized from the accused-Om Prakash, samples, were sealed separately and seizer memo was prepared on the spot itself. Thereafter appellant and co-accused-Omprakash were arrested by the checking party, report of the incident under the provisions of S. 57 of the NDPS Act, was made by Dy. Narcotics Commissioner, Neemuch along with the both accused persons and the seized articles. One sample was sent for examination to Government Opium Factory, Neemuch where on examination it was confirmed that article which was seized from the accused-Om Prakash was opium, as it was containing 10.03% Morphine, thereafter after completing other formalities of investigation appellant and co-accused were charge-sheeted before learned Special Judge. Appellant and co-accused abjured their guilt and pleaded false implication in the case. After trial learned Special Judge found appellant as well as co-accused-Omprakash guilty and sentenced both of them under S. 8 read with S. 18(c) or in alternative S. 8 read with Ss. 18(c) and 29 of the NDPS Act and sentenced them for R.I. for 5 years and fine of Rs. 1,00,000/- (one lakh). Mam accused-Omprakash was already in jail for more than 5 years during pendency of trial so when he deposited the fine amount and was released from jail. He has not preferred any appeal challenging the judgment of conviction.

(3.) In this appeal though initially conviction of appellant was also challenged but at the time of final argument learned counsel for the appellant-Shri J.K. Joshi has confined his arguments only on the question of sentence; and has expressed that he does not wish, to challenge the conviction of the appellant.