AHNUT Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS appeal is directed against the judgment and Order in S.T No. 167/87, order dated 12th October, 1987, by the learned IVth A.S.J., Indore, who was pleased to convict the appellant under Section 8 read with Section 18 of the NDPS Act.

(2.) THE case against the appellant is that on 11-5-87 the Excise Sub-Inspector Kushwaha received an information from the informant that the accused is dealing in Opium. He along with Excise force reached Patnipura, Indore, where the ac­cused appellant is said to be residing and recovered about 35 gms of Opium. The same was seized by Seizure Memo Ex P 1. The same was not caused to be tested, as according to the sub-inspector, the quan­tity was very small.

(3.) SHRI Khan Kamil argued that the Panchnama does not suggest anything of the sort. It suggests straightway entry of the inspector. In the column-Name of the owner/Property searched- there is no mention that the appellant had gone away. It is not possible according to him to believe that if the Sub-inspector had gone with a squad, the appellant would be able to escape. He argued that witness P.W 1 Gaya Prasad and P.W. 2 Ramlal were the neighbours of the appellant. They have stated that the landlord had a dispute with respect to vacating the premises. In cross-examination by the appellant witness Gaya Prasad had admitted that the landlord had threatened the appellant of dire consequences of going to jail. Same is the testimony of P.W 2 Ramlal, in cross-examination who is not declared hostile. The question of P.W. 3 regarding the Sub-inspector, implicating the appellant at the behest of the landlord is to be weighed in the light of other evidence and cir­cumstance of the case and according to his submission, this case had to be accepted by the Court that the Sub-Inspector P.W 3 tried to help the landlord. It is also to be borne in mind that the procedure followed by P.W 3 is not only laconic but peculiar in itself, suggesting only the lack ofbonafide on the part of P.W. 3. The circumstances in which the house of the accused was sear­ched, creates doubt about the bonafides of P.W. 3, when he takes upon himself the substance to be testified suggesting it to be Opium, without sending the same for chemical examination. If he found the sub­stance to be more than enough for burn­ing, he would have surely sent the sub­stance for chemical examination. Shri Khankamil also argued that when an of­ficer authorised under Section 42 of the NDPS Act received any information, it should be in writing, but no such written information is produced or proved. The case also suggests that the witness No. 3 was slightly in a hurry to pack up the case. He argued that away from the normal circumstances, the weighrrient of the sub­stance again is not proved, which invariab­ly is done in all cases under the NDPS Act by the authorities in this area. According to him, all the circumstances lead to the conclusion that the appellant was wrongly and designedly implicated in the serious offence under the NDSP Act. He argued that this is one case, if at all there be any to take action under Section 58 of the NDPS Act against P.W. 3.