SHYAM BIHARI Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The present appeal has been filed u/S. 374 of the Code of Criminal Procedure, 1973 against the judgment of conviction dated 04/08/1997 passed by the learned Additional Sessions Judge, Indore in Session Case No. 545/1993 State of Madhya Pradesh Vs. Shyam Bihari, convicting the appellant for an offence u/S. 8/21 of the Narcotics Drugs & Psychotropic Substances Act, 1985. The appellant has been sentenced to undergo 10 years RI and fine has been imposed to the tune of Rs.5.00 lacs with a default clause to undergo 3 years RI on account of non payment of fine.

(2.) As per the prosecution case, on 3/3/1993 at about 17:35, Sub Inspector posted at Police Station Pandrinath namely; R. V. Dahima received an information through some informant that one person whose name is Shyam Bihari is roaming near Jagran Press Macchi Bazar Masjid along with Brown Sugar. Based upon the information of the informant, an entry was made in the Rojnamcha Sanha at No.281 and after verifying the information secretly, as it was found to be true, another entry was made in the Rojnamcha Sanha at No. 282 on 3/9/1993, the police party along with two independent witnesses Ashok and Bherulal went to the spot in a police vehicle and accused appellant Shyam Bihari was found at the spot with a plastic bag. He was nabbed at the spot in front of panch witnesses and a specific question was asked, as required under the Act, whether he wants his search to be done by a Gazetted officer or by the Police Officer who has conducted the search. The appellant, as per the prosecution case, gave his consent to be searched by the Police Officer and upon search a packet was recovered from him which was smelling like Brown Sugar. Total weight of the brown sugar seized from the appellant was 500 Grams and the FSL Unit was also informed on wireless. The technical officer of the FSL Mobile Unit reached the spot and after preliminary examination / analysis, it was informed to the Police Officer that it is prima facie brown sugar. The appellant was not having any license for keeping the brown sugar with him nor for selling brown sugar and out of 500 grams of brown sugar, 100 grams was kept in a small plastic packet and it was sealed at the spot only. The appellant was arrested and again entries were made in Rojnamcha Sanha. The C.S.P. was informed on wireless. The seized brown sugar was handed over to Head Moharir M.P. Singh for depositing in the Malkhana and a crime was registered at Crime No. 165/1993 for offence u/S. 8/18 of the NDPS Act, 1985.

(3.) The prosecution has produced as many as 12 witnesses. Constable Mulayan Singh (PW 1), Constable Nahar Singh (PW 2), Head Constable Ramashankar Shukla (PW 3), Devnath Pandey (PW 4), Radholal (PW 5), Ashok (PW 6), Bherulal (PW 7), Sub Inspector R. V. Dahima (PW 8), Head Constable Santosh (PW 9) Crime Branch, Asstt. Chemical Analyst Prakash Chandra Dubey (PW 10), Constable Rajlalan Mishra (PW 11) and Constable Pannalal (PW 12). After examination of the witnesses, the trial Court has arrived at a conclusion that the article recovered from the appellant is Brown Sugar. The statement of the prosecution witness Asstt. Chemical Analyst Prakash Chandra Dubey (PW 10) are on record. The Chemical Analyst Report is also on record as Ex.P/13 and the same establishes that it was brown sugar only. The statement of witnesses and the chemical analyst report has established it to be brown sugar.