SHABBIR Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS criminal ap­peal is directed against the judgment of conviction and order of sentence dated 13-12-1995 rendered by XIth Additional Sessions Judge, Indore (Special Judge) is Special Case No. 19/95 thereby convicting the appellant under Section 8/18 of the Narcotic Drugs and Psychotropic Substan­ces Act, 1985 (for short, 'the Act') and sentencing the appellant to undergo Rigorous Imprisonment for ten years and to pay fine of Rs, 1,00,000 in default of payment of fine to suffer further Rigorous Imprisonment for two years.

(2.) THE case of the prosecution, in short is that on 3rd February, 1995, B.S. Dwivedi (P.W. 6), Sub-Inspector, Incharge of Police Chouki, Lasudiya got telephonic message that the appellant was towards Dewas Naka on his Scooter bear­ing Registration No. MP/09-9220 to sell opium. The message was reduced in writ­ing in the Rojnamcha and the copy of the information was sent to the higher authorities. Thereafter, raid party was formed and visited the place of incident. Two independent witnesses Rajendra Kumar (P.W. 4); Ram Singh (P.W. 5) and Munna Singh (P.W 2) Head Constable were included in the raid party. At about 3.20 p.m. the appellant was seen coming on his Scooter and he was intercepted and was apprised of his right as regards for­malities pertaining to search, by the raid party. The appellant, however, consented and agreed that search could be taken by B.S, Dwivedi (P.W 6), Accordingly, on his personal search, two packets of opium were seized from the pocket of his paint. The Scooter of the appellant was also sear­ched and five packets of contraband article were seized from the dickey of the Scooter. On weighment, the weight of the con­traband article was found to be 340 gms. Two samples of 40 gms were drawn and sealed. The appellant was arrested. The seized property and the appellant were brought to the Police Chouky, Lasudiya. The FIR was registered as Police Chouky, Lasudiya at 0/95 later on, the crime was registered against the appellant at Police Station MIG Indore vide Crime No. 90/95. One sealed packet was sent for chemical examination to F.S.L. Sagar. Exh. P/18 is the report received from ES.L. Sagar. This report confirmed that article was opium and contained Morphine of 3.20 per cent. On completion of investigation, the challan was riled, the appellant was charged under Section 8/18 of the Act to which he pleaded not guilty. On evaluation of the evidence, the trial Court convicted and sentenced the appellant as indicated above.

(3.) LEARNED Counsel for the appellant contended that the judgment of the trial Court is assailed on the ground that it is not proved that mandatory provisions of Section 50 of the Act is complied with. The prosecution witness (P.W. 4) Shyamlal, a witness for search panchnama, Ex. P/1 does not support the prosecution case. An independent witnesses, memo of search and seizure, Exs. P/4 and P.5 as also Exs. P/2 and P/3 with regard to obtaining consent of the appellant for search and seizure, do not support the case of the prosecution. The weighment of the seized article on the spot, is also not proved from the statement of Manoj (P. W1), Learned Counsel for the appellant also submitted that there is no evidence on record to prove that provisions of Section 55 of the Act with regard to taking of the charge of the seized article by the Police Officer of the Police Station is also not proved. In the aforesaid circumstances and the law applicable to the present case, charges levelled against the appellant are not proved beyond doubt and the appellant deserves acquittal. The Counsel for the appellant relied on the following decisions: