PUR SINGH Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 24-1-96 in S.T No. 12/95, passed by the learned Sessions Judge, Shajapur, who was pleased to convict the appellant for an offence under Section 8/18 of the NDPS Act and sentence him to undergo 10 years R.I. and fine of Rs. 1,00,000 in default to undergo further R.I. for two years.

(2.) THE case against the appellant is that on 30th August, 1995, S.H.O. of P.S. Badod received information that one per­son in coming to near Durgapura Barrier. A Panchanama Ex. P-2 was drawn and entry was made. The S.D.O.P, Agar was informed about that in writing and also by telephone. When the S.D.O.P., Agar Sri Bhanwar Singh Kelwa PW-2 came to the Police Station, he took S.H.O. Yadav and police force. P. Phatesingh PW-3, Shankar Singh P W-4 Santuram P W-1, went to Dur­gapura Police Chowki. After waiting for some time, they saw the appellant coming. He was surrounded and detained. He was informed about the information received by him, as also the option under Section 50 of the NDPS Act, asking him whether he would like to be searched in presence of the Police Officer or through any Magistrate or a Gazetted Officer, upon which the appellant accused gave consent to his being searched by the Police Officer present there. The search result into find of Opium weighing 2.500 gms of which 30 gms. each were taken out for sample. The same were sealed as detailed in Panchanama. The accused was ap­prehended. The FIR was formally registered as Ex. P-27. The seized Opium was handed over to the store at Police Station. On being asked he also had stated of having some more Opium in his residence. But the same could not be sear­ched. The sealed samples were sent to the F.S.L. from where it was confirmed to be opium.

(3.) LEARNED Counsel Sri Siddiqui ap­pearing for the appellant argued that the prosecution has failed to overlook the mandatory provisions of Section 50 of the NDPS Act and therefore, the proceedings against the appellant are vitiated and he is entitled to acquittal. He argued that the Panchanama do not support recovery and therefore, recovery cannot be held proved. He argued that there are contradictions in the evidence of the S.D.O.P. from the case of the prosecution and inter say in consis­tency amongst the witnesses of prosecu­tion, creates a very heavy cloud of doubt weakening the prosecution case. He ar­gued that P-2 Bhanwarsingh Kelwa and PW-5 Anand Kumar Yadav cannot be relied and they are police witnesses and they are not supported by independent evidence.