AFJAL ABBAS Vs. STATE OF M P

JUDGEMENT

(1.) This appeal arises against the judgment and order in Sessions Trial No. 144/93 dated 22-4-1995 by the learned Additional Sessions Judge, Jaora, who was pleased to convict the appellant alongwith another accused Chunnukhan whose appeal No. 591/95 against the same judgment has already been allowed.

(2.) Shri Z.A. Khan argued that in the appeal arising against the same judgment, this Court has held from the same evidence that Section 42 of the N.D.P.S. Act (for short the Act) has not been followed which is mandatory as held by various Courts including the Supreme Court, therefore this appeal also deserves to be allowed. He argued that Section 50 of the Act has also not been followed as required by law. He argued that a false case has been made out against the appellant and Chunnukhan who was having imbalanced and was going to Hussain Tekri for Zircit and when the appellant saw that Chunnukhan is unnecessarily being harassed he challenged the police officer from doing, that upon which the police officer got enraged and took him alongwith Chunnukhan in the police van to the police station and booked a false case. He said that false Panchnama was prepared and though the Panchnama did not support the lower Court convicted the appellant only on the evidence of PW 2 R.B. Dixit, the Investigating Officer, who apart from implicating falsely the appellant, gave a false evidence so as to secure conviction of the appellant.

(3.) The counsel for the appellant also argued that there are many missing links when the Punch did not support the Panchnamas the evidence of Panchnamas became doubtful and it was the duty of the prosecution to prove the case beyond reasonable doubt link by link. He argued that the police has not prepared the usual Panchnama or search of the appellant. He argued that as required by Section 50 of the Act the appellant was not given to know the legal provisions as to requiring the police officer to give option to the accused of N.D.P.S. case whether he would like to be searched in presence of a Gazetted Officer or Magistrate as referred to in Section 50 of the Act. The evidence tried to be created by the Investigating Officer also lacked in sequence. He argued that it is not proved at all that the appellant had any contraband article. The Investigating Officer had tried to improve upon the story by bringing weighing scale from a Goldsmith, which never was in the Panchnama drawn by that Officer. The Officers tried to prove by saying that one Ramesh was sent for, bringing the weighing scale from the Goldsmith. Ramesh has not been examined nor any Goldsmith is examined to prove that aspect. He argued that even the name of the Goldsmith is not known to the Investigating Officer. I agree with the learned counsel for the appellant.