SHEIKHLAL Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS appeal is directed being aggrieved by the judgment dated 31-1-07 passed by the Special Judge, Mandla (constituted under the NDPS Act, in short "the Act") in Special Case No. 18/06 convicting and sentencing the appellant under Section 8 read with Section 20 (b) (ii) (b) of the NDPS Act, 1985, for three years' RI with fine of Rs. 2000. In default of it, further nine months' RI has been awarded.

(2.) ACCORDING to the case of the prosecution on dated 5-9-06 Madan shrivastava, ASI Police posted at Police out post Anjaniya P. S. Bamhani received an information from the approver that the appellant having possession of "ganja" is going to sell the same towards the Magada culverts. After recording such information in the Rojanamchasanha he called the independent witnesses and their presence prepared the Panchanama of such information and also recorded the reasons for not obtaining the search warrant as there was possibility to escape the appellant with the substance. Subsequent to it under intimation to the Additional S. P. Mandla he accompanied with the Police Staff and independent witnesses alongwith all requisites left the Police Station for the respective place where he apprehended the appellant with a bag whom he apprised with the aforesaid information and also intimated regarding his right to search in presence of the gazetted officer or through him. In response of it on giving the consent of his search through the said Police Officer, after giving the search of Police Staff, the search of the appellant was carried out in which the alleged substance Ganja was recovered from his bag. The same was verified as Ganja by putting on fire with its smell. After verification the weighing instrument on weighting the same, it was found 1. 600 kg in weight, out of which two samples of 50 gram each for chemical examination were taken out. The samples and the remaining substance were sealed and seized. After supplying reasons the appellant was arrested. In order to carry out the aforesaid investigation different Panchanamas were prepared on the spot. The same were signed by the appellant, independent witnesses and also by the said Police Officer. Subsequent to it, the alleged substance with samples and the appellant were brought to said Police Out Post. After recording their arrival in the Rojnamcha the FIR was lodged and sent to the Police Station, Bamhani where the offence was registered on Crime No. 213/06. The intimation regarding seizure of substance and arrest of the appellant was sent to the Additional Superintendent of Police, Mandla. The samples were sent to FSL, Sagar from where the report was received according to which the alleged substance was revealed as Ganja. On completion of the investigation, the appellant was charge sheeted for the offence punishable under Section 8/20 of the Act. The Special Court framed the charges under Section 8 read with Section 20 (b) (ii) (b) of the Act. The appellant abjured the guilt on which the trial was held. After recording the evidence, on appreciation of it, the appellant was held guilty for the aforesaid charge and punished with aforementioned punishment. The same is under challenged in this appeal.

(3.) SHRI Sanjay Saini, learned Counsel for the appellant assailed the impugned judgment on the ground that the story put forth by the prosecution has not been supported by any independent source of evidence. The provision of Sections 42, 50, 55 and 57 of the Act has not been duly complied with by the investigating agency. The seizure Panchanama and other papers have not been prepared in accordance with law. Seizure memo which was prepared before registration of the offence is also having crime number. It shows the falsity of case and also false implication of the appellant. It was also argued that the report of the FSL, Sagar has not been proved by any prosecution witnesses. He further said that in which manner the seized substance was handled by the Investigating officer from the place of seizure upto the Police Station and where it was kept in safe custody till sending the samples to the FSL, Sagar and submitting the charge-sheet before the Court, the same has not been proved by examining the malkhana Incharge or by producing the register of such Malkhana. Thus, possibility of changing the substance could not be ruled out. With these submissions he prayed for acquittal of the appellant by allowing his appeal.