NAJMABANO @ KHURSHID @ PHOOLWALI Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order in S.T No. 100/95 dated 15-9-1995 by the learned First Additional Sessions Judge Ratlam, who was pleased to convict the appellant under Sec. 8 read with S. 21 of the NDSP Act and sentenced her to undergo R.I. for 10 years and fine of Rs. 1,00,000/-in defa­ult to undergo further R.I. of two years.

(2.) THE case against the appellant is that on or about 9th March, 1995 at about 21-25, she was found in illegal possession of 750 gms of Brown Sugar fbiacityl Mor­phine) near the Jaora Level Crossing, Ratlam. It is said that the Police Station Do Batti, Ratlam received information through Mr. R.B. Dixit, the T.I. (P.W. 5) at about 20.05 on that day through a telephonic information that one woman wearing Saffroij colour Saiwar Kurta having a black bag and attache with her is coming to Ratlam, who has tied opium or Brown Sugar on her belly. The same was registered at Entry No. 794. Thereafter, the PanchasMunna and Rajesh were sum­moned for and an information Panchnama was drawn at Ex. P. 6. The information was sent to the C.S.P. one female constable was also called and the T.I. with the police force raided the Jaora Level Crossing, Ratlam, where he found a woman with the said description with the attache in her hand. She was stopped through the lady constable and on asking about the name she stated that to be Najmabano the ap­pellant. She was stated that she has brought illegal Opium or Brown Sugar, therefore, the T.I. would like to search her. She was asked for option whether she would like to go before the Magistrate or a Gazetted Officer for the purpose, she con­sented to her being searched in presence of the T.I. Necessary Panchnama bx. P 11 was drawn. The lady constable searched the accused and Panchnama Ex. P 7 was drawn for the purpose. T.I. Sisodiya came in the meanwhile, who signed the same Panchnama. Thereafter the lady constable searched the appellant any found that in white clothes wrapped on her stomach, there were three parts, in which polythene packets were hidden. The polythene pack­ets were containing a brownish substance. Necessary Panchnama was drawn, which is at Ex. P. 8. The substance was taken sample of weighing 5 gms each of all the three containers in the polythene. The samples were stored in polythene bags and scaled. The rest of the substance alongwith clothes were scaled in another seperatc packets. The appellant was arrested. The samples and the containers were taken to the police station and they were stored in the strong room. After the necessary in­vestigation and trial, the learned First Addl. Sessions Judge, Ratlam was pleased to convict and sentence the appellant, as above.

(3.) ASKED Shri A. Salim, PP, for the State, is not in a position to explain except by saying that the samples which were sealed vide Ex. P. 13 have reached intact before the F.S.L. To this Shri.. countered by saying that there may be so many samples lying in the strong room of the police station but it is not impossible that instead of the samples drawn from the appellant some other sample was sent even if it is believed that the samples were taken and stored in the strong room as contended by the prosecution. To this again, I am not convinced with any argu­ment of Shri Salim. The very basis of the prosecution is the positive find of the Heroine or Diacetyl Morphine. The edifice of the prosecution theory is wrack­ed. It really creates a substantial doubt, therefore, the appellant is entitled to ihe benefit there of.