SHAKHAWAT KHAN Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order in S.T. No. 251/91 by the learned Additional Sessions Judge, Jaora dated 30-11-1985, whereby he was pleased to convict the appellant under Section 8/21 of the NDPS Act and sentence to 10 years R.I. and fine of Rs. 1,00,000/-, in default further R.I. for three years.

(2.) THE short facts giving rise lo this appeal are that an information that two persons are standing near the Circuit House Junction of roads leading to Mhow-Neemuch Road, Sub-Inspector Raj Kumar Singh (PW-3) went with constable Harshendra. He prepared necessary record in the form of Roznamcha, which is at Ex. P-7. This happened on 29-10-1991. He proceeded to call Panchas sending Harish for the purpose. Harish and Mohan Lal were brought, they were informed about the information and along with the force consisting of R.C. Sorashtri, UPS Chauhan and others as also with the Panchas and the necessary paraphernalia went to the Circuit House cross-road junction, where he found two persons with bag. On being asked, the persons gave their names as Shakil Ahmad and Shakhawat Khan of whom appellant Shakhawat Khan is one who is described to be the resident of Jaora. The case of the prosecution further goes to show that the accused were in­formed about the information of them of their possessing Smack unauthorisedly, therefore, under Section 50 he asked that the option whether the appellants would choose themselves to be searched by Raj Kumar Singh or any other Gazetted Of­ficer. The Panchanama Ex. P-4 described that the opinion was asked aboul the Gazetted Officer and a Magistraic, upon which the accused accepting the option of being searched by Raj Kumar Singh, He prepared the Panchanama Ex. P-4 and searched the person of the accused. He found that one of them is possessing 500 gms. of Smack. A sample was drawn. Necessary Panchanama bore the signature of the accused as also two panchas Harish and Mohanlal.

(3.) MR . Jaisingh, learned Counsel ap­pearing for the appellants argued that the prosecution has failed to prove its case. He argued that only three witnesses are ex­amined out of them two Harish and Mohanlal have not support the prosecu­tion as they have turned hostile. The con­victions is based only on the evidence of Raj Kumar Singh PW-3, who is a Police Officer of the Police Station, Neemuch. He argued that there are many infirmities in the evidence of Raj Kumar Singh par­ticularly with reference to the following the procedure required by law. He argued that in the first place Section 50 of the NDPS Act has not been followed. In para 3 of the deposition witness Raj Kumar Singh has stated that he had asked about the option to the appellant as to whom he will prefer the concerned witness or other Gazetted Officer. No doubt in para 4 there is a mention clearly that the option was asked regarding the Gazetted Officer or Magistrate. He argued that Section 57 of the NDPS Act has not been followed, which requires that whenever any person makes any arrest or seizure under this Act, he shall, within forty eight hours next after such arrest or seizure make a full report of all the particulars of such arrest or seizure to his immediate official superior,