STATE OF M.P. Vs. RAKESH & OTHERS

JUDGEMENT

(1.) This appeal under section 378 of Code of Criminal Procedure, 1973 is directed against the judgment and order dated 08.12.1997 rendered by Sessions Judge, Mandsaur in Special Case No.166/96, whereby respondents - Rakesh, Balaram and Munna Pathan have been acquitted with regard to offences under Section 8/18 and 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act').

(2.) Prosecution story, briefly stated, is that on 25.05.1996 B.S. Malviya (P.W.6), the then Town Inspector, Police Station Mandsaur received a secret information at around 5.16 a.m. that one Lalu Patidar and three other persons accompanying him are preparing smack in the forest situated between village Balaguda and Mundkosa. B.S. Malviya (P.W.6) recorded this information in the Daily Diary of Police Station. He also apprised City Superintendent of Police (CSP) about the information and proceeded to lay a trap. When they reached near the given place, 3-4 persons on seeing the police squad tried to run away from the spot. Three of them successfully managed to get out the clutches of the police, however, one person namely, Rakesh Patidar was apprehended on the spot. B.S. Malviya (P.W.6) could identify 2 of the 3 persons, who fled away from the spot namely, Lalu Patidar, resident of Village - Baluguda and Munna Pathan, resident of village-Sakaria. Thereafter, B.S. Malviya (P.W.6) in presence of 'Panch' witnesses took Rakesh Patidar to the spot from where four persons had run away. He found utensils and appliances lying over there which are used for preparing smack. He also found opium solution lying in two containers. He also found two packets lying nearby having chemical powder of whitish colour. On measurement opium solution came to be 14 liter in quantity while on weighment the brown sugar was found to be 11 kg. All the appliances including stove, steel utensils etc. along with opium solutions kept in the steel tank and whitish powder kept in two polythene bags was seized by him from the spot. On physical verification, the powder lying in the plastic bags was found to be brown sugar. Two samples of 10 gram each were drawn from the alleged brown sugar powder and were respectively, marked as A/1 and A/2. Apart this, two samples marked as B/1 and B/2 were drawn from the opium solution. Two samples marked as C/1 and C/2 were drawn from another polythene bag in which white powder was lying. Apart this, two samples marked as D/1 and D/2 were drawn from another polythene bag containing some whitish powder. All the items and remaining materials were sealed on the spot and after being seized were deposited with the Police Station. Appellant Rakesh was arrested while remaining two accused namely, Balaram and Munna Pathan were apprehended later on. One sample each from the seized material was sent to the Regional Forensic Science Laboratory, Indore where on examination, the Assistant Chemical Examiner confirmed presence of di-acetyl morphine in packet A/1 and B/1, while in packet C/1, the presence of calcium was reported and in Ex.D/1 - sodium chloride was found. An FIR Ex.P/11 in this regard was registered against Rakesh, Balaram and Munna at Police Station - Kotwali, Mandsaur. The witnesses were interrogated. After due investigation, a charge-sheet was filed against them before the Competent Court.

(3.) Charges under Section 8/18 and 8/21 of 'the Act' were framed by the learned Sessions Judge/Special Judge against respondents/accused persons. They abjured the guilt and claimed to be tried. The prosecution in order to bring home the guilt examined as many as 7 witnesses before the learned trial Court including Prabhulal (P.W.1) and Iqbal (P.W.4), who were said to be the 'Panch' witnesses. B.S. Malviya (P.W.6) is the investigating officer, while constable Omprakash (P.W.7) is said to be accompanying B.S. Malviya (P.W.6) at the time of alleged search and seizure. Apart this, documents Ex.P/1 to Ex.P/16 were also marked in evidence. None was examined in defence, however, Ex.D/1 - the police statement of Omprakash (P.W.7) was marked in defence evidence. The learned trial Court on the basis of evidence adduced before it, vide the impugned judgment recorded acquittal in favour of the respondents holding that not only the mandatory provisions of Section 50 of 'the Act' have not been complied with but also that there are material contradictions in the testimony of B.S. Malviya (P.W.6) and Omprakash (P.W.7), who are said to be the witnesses of alleged search and seizure proceedings.