MUKESH @ BHERU SHANKAR Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This appeal has been preferred by the appellant being aggrieved by the judgment and sentence passed by the Court of Karuna Trivedi, 1st ASJ and Special Judge under Narcotic Drugs And Psychotropic Substances Act, Mandsaur whereby vide judgment dated 5.7.2003, the appellant was found guilty under Sections 8/21(c) of the Narcotic Drugs and Psychotropic Substances Act (in short 'the Act') and was punished with rigorous imprisonment of ten years with fine of Rs. 1,00,000/- and in default of payment of fine, the appellant was ordered to undergo rigorous imprisonment of two years.

(2.) According to the prosecution case, on 5.6.2000 on the information of the informer, Shri Anand Tomar, Town Inspector checked accused Bherulal, Mukesh and Dulichand in the garden situated at the bus-stand, Mandsaur. During search, 2 kg. 200 grams smack was seized from the possession of the each accused/appellant Mukesh @ Bheru and co-accused Dulichand and from the possession of co-accused Bherulal, 100 grams smack was seized. Hence, crime No. 245/ 2000 was registered at the police station, City Mandsaur under Sections 8/21 of the Act and challan was filed against the accused persons. After trial, the accused Mukesh was found guilty under Sections 8/21(c) of the Act and he was sentenced as mentioned herein above. Co-accused Bherulal was convicted under Sections 8/21(b) of the Act and sentenced to two years rigorous imprisonment with fine of Rs. 3,000/- as well as accused Dulichand is absconded, hence trial against him is pending.

(3.) It has been argued on behaif of the appellant Mukesh that the case was not proved on the basis of the evidence produced before the Trial Court. The seized property was not produced in the Court; only samples were produced. The independent witnesses Mubariq PW-5 and Balkrushna PW-6 were hostile and they did not support the prosecution case. The evidence of Kailash Sharma PW-3 A.S.I. was not reliable; he could not answer in cross-examination about the factual condition. The spot map was not exhibited. The process for search and seizure was defective, hence, the appeal be accepted.