KHYALI RAM Vs. STATE OF M P

JUDGEMENT

(1.) This appeal under Section 374 of Cr.P.C. has been filed against the judgment dated 19.6.2007 passed by Special Judge (NDPS Act) Guna in Special Sessions Trial No.18/2005 by which the appellant has been convicted under Section 8 r/w Section 15 (b) of NDPS Act, 1985 and a fine of Rs. 50,000/- with default sentence.

(2.) The allegations against the appellant are that on 4.9.2005 at about 20:20 near the Sanjay Stadium on Guna CanttCollectorate Road, the appellant was found in possession of 8 Kg. opium husk.

(3.) The prosecution story in short is that a FIR was lodged on 4.9.2005 at about 21:10 by the complainant R.B.S. Raghuvanshi. It was stated in the FIR that the complainant is posted on the post of ASI. An information was given by the informant that the appellant is standing near the Sanjay Stadium on the Collectorate Road for selling the opium husk. The information was mentioned in the panchnama which was prepared separately and the same was sent to SDO(P), Guna through constable Shyam Singh. As there was a possibility that the appellant may abscond in case the proceedings are taken up for obtaining search warrant under Section 41 of NDPS Act and he may destroy the evidence, therefore, without obtaining the search warrant it was decided by the complainant to go to the spot. The complainant started preparing for investigation. The information given by the informant was got verified and thereafter they departed for the place which was pointed out by the informant along with the other police personnels. When they reached near the Sanjay Stadium on Collectorate Road they found that one person was standing near electric pole and was having plastic bag. On interrogation, he disclosed his name as Khyali Ram R/o Malpur, Guna Cantt. He was informed that an information has been received that he is carrying opium husk for selling the same illegally and, therefore, the search of his plastic bag is necessary. He was informed about his statutory right of getting himself searched either by the I.O. or by the Executive Magistrate or by any Gazetted Officer. The appellant gave his consent for search by the I.O. After giving their own search, the bag which the appellant was carrying was opened and it was found that it was filled with opium husk. The appellant also disclosed that his plastic bag contains opium husk and he could not produce any license to possess and sell the same. The seizure memo and the identification memo were prepared and the scale and weight [1] were physically verified and panchnama was prepared and thereafter the opium husk was weighed and weight panchnama was prepared and it was found that the total weight of opium husk is 8 Kg. Two samples of 250 Gms. each were prepared and were sealed. The remaining 7 and ½ Kg. of opium husk was sealed and the seizure memo was prepared. The appellant was arrested on the spot and, therefore, he was made known about the grounds about his arrest. Thereafter, the appellant and the seized opium husk were brought to the police station and the same was deposited in the Malkhana. Thereafter the report was placed before the SHO, Police Station.