ASLAM PATHAN Vs. THE STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This appeal under Section 374 of the Code of Criminal Procedure, 1973 (for short, "the Code") has been preferred against judgment and order dated 24.11.2015, rendered by Special Judge (under the Narcotics Drugs Psychotropic Substance Act, 1985 - for short, "the Act"), Indore whereby appellant Aslam Pathan, has been convicted for offence under Section 8/21(c) of "the Act" and has been sentenced to undergo 10 years rigorous imprisonment and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to suffer further rigorous imprisonment of one year.

(2.) Prosecution story, briefly stated, is that on 07.04.2011, at around 06:00 a.m., a secrete telephonic information was received at Police Station - Aerodrome, Indore that one Aslam Pathan, son of Alam Pathan, having "Smack" in his possession, is coming in a Maruti Car, bearing Registration No.MP-09-HC-7797 from Depalpur to Indore to sell the same. This information was recorded at Serial No.435 in the daily diary (copy Ex.P/14). M.K. Bhargava (P.W. 2), the then Station House Officer, Police Station - Aerodrome, Indore, summoned two Panch witnesses namely - Rajendra Mishra (P.W.1) and Sanjay Chauhan (P.W.10). Memorandum (Ex.P/1) with regard to receipt of the aforesaid information was reduced in writing. Memo (Ex.P/2) was also prepared to the effect that due to paucity it is does not feasible to obtain a search warrant else, concerning person may escape away. Copy of this memorandum alongwith report (copy Ex.P/16) was sent, per messenger Head Constable Kishan Lal (P.W.5), to C.S.P., Malharganj, Indore. M.K. Bhargava (P.W.2) thereafter, along with Panch witnesses Rajendra Mishra (P.W. 1), Sanjay Chauhan (P.W.10), Sub Inspector Badri Lal Medha (P.W.4) and few other police officials, proceeded towards Super Corridor, Indore in order to intercept the vehicle as per secret information. After half an hour, near Greater Baba Temple, the police party saw a Maruti Car of the given particular coming from Depalpur side. The same was intercepted by M.K. Bhargava (P.W.2). Appellant Aslam Pathan was driving the same with no other person in the car. The appellant tried to run away from the spot however, he was caught by the police party. M.K. Bhargava (P.W.2) informed him that he is to be searched on account of suspicion that he is having contraband in his possession. Vide notice Ex.P/3, he was informed about his legal right to be searched in presence of nearest Magistrate or Gazetted Officer.

(3.) Allegedly, the appellant, vide Ex.P/4 consented to be searched by M.K. Bhargava (P.W.2). Thereupon, after observing necessary formalities, search of the person of the appellant was carried out in which one kilogram five grams "Smack" was found kept in a polythene bag inside a pouch of cloth tied with a rope around west of the appellant. The same was recovered from the appellant. On being physically tested on the spot, the same was found to be "smack". Two samples of 25 gms. each were drawn from it packets of both samples and the remaining substance were separately sealed and marked respectively A1, A2 and A. The car as well as a mobile phone, found with the appellant were also seized alongwith the contraband vide seizure memo (Ex.P/11). The appellant was arrested, vide Arrest Memo (Ex.P/12). After conducting raid, the police party lead by M.K. Bhargava (P.W.2) came back to police station - Aerodrome. Articles A1, A2 and A were again sealed at Police Station and thereafter deposited in Malkhana with Head Constable Dayaram (P.W.3). FIR Ex.P/21 was recorded against the appellant for offence under Section 8/21(c) of 'The Act' . Detailed report copy Ex.P/22 regarding arrest and seizure was made to C.S.P., Malharganj, Indore. One of the samples was sent through Constable Jitendra Jain (P.W.9), vide memo Ex.P/26, to forensic science laboratory, Bhopal. The same was deposited with the forensic laboratory on 13.04.2011. Dr. D.K. Sharma (P.W.11), Senior Forensic Officer, FSL, Bhopal, vide report (Ex.P/33) found the substance kept in the sealed packet, as "Di-acital Morphine" (heroine) having concentration of 17.89%.