MOHAMMAD NAYAN CHOUDHARY Vs. STATE OF M.P.

JUDGEMENT

(1.) This appeal preferred through Superintendent Jail, Indore is directed against judgment and order dated 18.03.2011 rendered by Special Judge (Narcotics), Indore in Special Case No.15/07, whereby appellant Mohd. Nayan Choudhary has been found guilt under Section 8/20(C) of Narcotic Drugs and Psychotropic substances Act, 1985 (for short 'the Act') and sentenced to undergo 15 years R.I. and to pay a fine of Rs. 1,50,000/- and to undergo 3 years R.I., in default of payment of fine.

(2.) The prosecution story, in a nutshell, is that on 24.09.2007 Sub-Inspector R.K. Mishra (P.W.12), Police Station Sanyogitaganj, Indore, received a secret information that a person wearing a grey/cream coloured T-shirt and grey pant having long hairs is coming to sell cannabis ('Ganja') to some person. The information was recorded in daily diary at serial No.2127 at 50 p.m. (copy Ex.P/25-C). As the concerned C.S.P. could not be contacted on wireless, therefore, due to paucity of time memo Ex.P/3 under Section 42 of 'the Act' was prepared recording reasons for nonprocurement of search warrant; a copy of the same was forwarded through Constable Shantilal (P.W.5) to C.S.P. Thereafter, R.K. Mishra (P.W.12) along with police force and two panch witnesses namely, Nikki (P.W.7) and Pushkar Raj Verma (P.W.10) arranged a trap near Navlakha Busstand. After around 15-20 minutes a person of the given features having a sack and bag with him alighted from bus coming from Mhow Rao. On interrogation, he revealed his name as Mohd. Nayan Choudhary S/o Rahim Choudhary. After giving him a notice under Section 50 of 'the Act', apprising him that he can opt for being searched before Magistrate or gazetted officer, on his consent as per memo Ex.P/8, a search was carried out of the gunny bag and other bag held by him. Green leaves, buds and flowers like material was found inside the bag, which on physical examination, vide memo Ex.P/11 was identified as cannabis. On weighment respectively, 14 kilogram and 10 kilogram of cannabis was found in the gunny bag and the other bag. After mixing the same, two samples of 250 gram each (A/1, A/2) were drawn. The appellant was arrested. FIR (Ex.P/37) was recorded at Police Station Sanyogitaganj in this regard. The samples and the remaining material were separately sealed in presence of panch witnesses. A report with regard to arrest and seizure under Section 57 of 'the Act' was sent to the then C.S.P. Sample article A/1 was sent for chemical examination to FSL, Rao, Indore. Dr. Vishnu Kolhe (P.W.13), vide report Ex.P/23, confirmed that the same is cannabis. After usual investigation, a charge-sheet was laid before the competent Court.

(3.) On being charged for offence under Section 8/20(C) of 'the Act' the appellant abjured guilt and claimed to be tried. The appellant pleaded that on 22.09.2007 around 1.45 a.m., two unknown persons had taken him to Police Station Sanyogitaganj, Indore to hold a magic show as he was earlier holding such shows in 'Nakhrali Dhani', a restaurant. It was further submitted on behalf of the appellant that a sum of Rs. 6 lacs was due against the owners of 'Nakhrali Dhani' regarding which she has lodged a report with the Labour Court and that due to non-payment of the amount due he left 'Nakhrali Dhani' and started holding his shows at 'Hotel Sayaji' regarding which Manager - Ramanand Yogi of 'Nakhrali Dhani' had told him that if he refuses to organise magic show at 'Nakhrali Dhani' he would not be allowed to hold magic shows at any other place,. Thereafter, on 22.09.2007 around 1.45 p.m., two persons had taken him to Police Station Sanyogitaganj, Indore, and he was put in confinement regarding which a news was also published in the newspaper Sanja (Ex.D/1) and Lokswami (Ex.D/2) that he was apprehended by the officials of the Crime Branch and was handed over to Police Station - Sanyogitaganj, Indore.