SHAMSUDDIN Vs. STATE OF M .P.

JUDGEMENT

(1.) THE appellant has filed this appeal challenging his conviction under section 8/18 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short "the Act") sentenced to RI for ten years and fine of rupees one lakh, in default whereof to undergo RI for three years, passed by learned Sessions Judge, Ratlam in Sessions Trial No. 94/1993, judgment dated 22.8.1994.

(2.) ACCORDING to the prosecution case, SHO Rohni Prasad Ahirwar (PW 8) received information from mukbir on 13.6.1993 that appellant was going having illegal possession of opium from Gandhi Nagar to Railway Station in Ratlam, SHO called the witnesses and informed about the mukbir information. He prepared panchnama. (Ex. P-9) and also sent information to superior officers, thereafter proceeded towards the place of information along with police force and the panch witnesses Shyam Tiwari (PW 5) and Kailash (PW 6). Rohni Prasad (PW 8) and the police force found the appellant near Dev Narayan Temple where they had also meeting with CSP Shri S.P. Singh, who was not examined. Appellant was stopped by them and Shri Singh disclosed the appellant about information and illicit possession of opium by him and also expressed his intention to search him. Appellant gave his consent to be searched by Shri Singh. Panchnama to this effect Ex. P-10 was prepared. In search, in the bag of appellant one kg opium was found. Shri Singh completed the sampling proceeding and arrested the appellant, thereafter brought him to the police station where FIR (Ex. P-12) ws recorded. Seized opium in sealed condition was deposited in Malkhana of the police station and one sample was sent through constable for chemical analysis. Analyasis was done by Scientist Vinod Lohkare (PW 7) who issued analysis report (Ex. P-11). According to this report and the statement of Lohkare, sample was containing 1.78% morphin. After completion of the investigation, the appellant was charge-sheeted for the abovementioned offence.

(3.) THE learned counsel for appellant has put forth only argument for consideration by this Court, that there is no compliance of mandatory provision of section 50 of the Act. According to the learned counsel, before taking search, appellant was not made aware of his right to be searched by the nearest gazetted officer or Magistrate. Therefore, the whole proceedings stand vitiated and appellant is entitled to be acquitted.