ISHWAR SINGH Vs. STATE OF M P

JUDGEMENT

(1.) THIS appeal is directed by the accused against the judgment and order dated 17.2 -1998 passed by Sessions Judge, Mandsaur in S.T. No. 6/88 whereby the appellant was convicted under Sections 8/18 of the N.D.P.S. Act, 1985 (for short ˜the Act') and sentenced to 10 years RI.

(2.) THE prosecution case, in brief, was that on 5 -7 -1987 at 12.00 a.m. P.W. 5 B.S. Malviya. Sub -Inspector P.S. Maihargarh, received information that in the jungle of village Sujanpura. Dhokri and, Ambab, on the well of Ratan Singh, opium will be collected and prepared and will be transported in a jeep before morning, this information was noted down in Roznamcha Sanha Ex. P.5 and thereafter Sub -Inspector Malviya called P.W. 2 Mangilal, watchman and P.W. 3 Kamal Singh. N.C.C. Homeguard and gave them this information and proceeded for the place from where the opium was to be transported. Sub -Inspector Malviya took S.P. Tiwari. Sub -Inspector, out -post Pipliya Mandi and reached the road at 3 a.m. in the night. At 3.30 a.m. two persons came on a horse with a gunny bag, from the side of village Ambab and Semli. S.I. Malviya flashed torch seeing which the rider accelerated the speed. The appellant Ishwar Singh threw the bag and jumped from the horse. He ran but was chased and apprehended. The bag was checked, it was found containing .30 kgs. and 410 gms. of opium. Thereafter they went to the well of Ratansingh, seeing them 3 -4 persons ran away from the well. They found there 200 gms. of opium. Thereafter, Sub -Inspector Malviya seized this opium from Ratansingh and prepared samples. One sample was sent to Government. Opium and Alkaloid Works, Neemuch for chemical examination. The chemical examiner to the Government of India, opined vide report Ex. P.10 that the samples were found to be opium by qualitative and quantities analysis. After completion of investigation challan was filed. The appellant pleaded not guilty and false implication. The learned Sessions Judge convicted and sentenced the appellant as stated above. Hence, this appeal.

(3.) I considered the arguments advanced by Counsel for both sides and perused the record. It has come in the evidence of Malviya (P.W. 5) that on 5 -7 -1987 at 12.00 a.m. in the night, he received information that opium was to be collected and prepared on the well of Ratanlal in the jungle of Sujanpura. He entered the information in Roznamcha Sanha No. 161, Ex. P. 1 and sent the copy of it to his senior officer and thereafter called independent witnesses Mangilal and Kamalsingh and narrated them the information and prepared Panchanama Ex. P.6. Thereafter Suri Malviya, along with these two witnesses, two constables and Sub -Inspector S.P. Tiwari, out -post Pipliya Mandi reached the jungle and surrounded the road which was going to village Sujanpura and Khakdi. At about 3 a.m. one black horse came from the direction of Semli village on which two persons were riding. There was a bag between them. He flashed torch, seeing which the appellant threw the bag and jumped from the horse and tried to run away. He was chased and over -powered. They also chased the horse but could not apprehend the other rider. The bag was taken up and they went to the well of Ratansingh, from where three persons ran away. They apprehended one Madansingh. On search, 200 gms. of opium was found which was seized vide seizure memo Ex. P. 3. Two packets full of opium were found in the gunny bag, the weight of which was 30 kgs. and 410 gms. Mangilal (P.W. 2) stated that one man was riding the horse and other was going on foot following the horse. He was declared hostile. He admitted in cross -examination that two persons were riding on the horse. The appellant threw the bag and fell down from the horse. He was apprehended. In cross -examination again he stated that he could not see as to who threw the bag from the back of the horse. P.W. 3 Kamalsingh fully supported the statement of Shri Malviya. He deposed that one man jumped from the horse and other threw the bag and galloped from there. These witnesses were cross -examined at length but nothing could be elicited which may establish the evidence of these witnesses unreliable. The argument of Shri Joshi that the bag was not recovered from the physical possession of the appellant, therefore, no offence was made out against him, is not acceptable. From the evidence of Kamalsingh and S.I. Malviya, it is clear that the appellant and one other person were riding the horse and a gunny bag of opium was thrown from the back of the horse by the appellant or by his companion. As the bag was kept on the back of the horse and appellant was also riding the horse, therefore, it is clear that the bag was in joint possession of the appellant and his companion. It is not acceptable that the appellant did not know that the bag contained opium. In my opinion, the learned trial Judge rightly held that the gunny bag was in possession of the appellant as well as his companion.