BUDHARAM 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 Buddharam 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. 1,00,000 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. 1,00,000 in default to further under R.I. for two years.

(2.) 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 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 gave 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. P9 of the entire proceedings was sent by Sub-Inspector to the Supdt. of Preventive Party which has been treated as FIR. One packet of sample was sent to the Opium and Alkaloid Factory Neemuch for chemical examination. According to the examination report (Ex. P20) 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.

(3.) 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.