MANBODHMALLAH ALIAS MANBODH CHOUDHARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS is an appeal under section 374 (2) read with section 389(1) of the Code of Criminal Procedure, 1973 (in short 'the Code ') also read with section 36(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the Act). The appellants alongwith one Shanker Dayal Choudhary (since acquitted) were tried for the charge under section 20(B)(ii) of the Act by Shri Anil Kumar Verma, learned District & Sessions Judge -cum -Special Judge, Buxar in N.D.P.S. Act Case No. 9/99 and appellant no. 1 , Manbodh Mallah was sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 70,000/ - and in default he was further directed to undergo rigorous imprisonment for one and half years. So far as appellant no. 2, Sudama Devi, was concerned she was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/ - and in default of payment of fine she was further directed to undergo rigorous imprisonment for two and half years.

(2.) THE prosecution case, in short, is that Ajay Kumar Mishra (P.W. 2), the Officer Incharge of Rajpur Police Station recorded his own statement on 22.8.1999 near the house of appellant no. 1, Manbodh Mallah alleging, inter alia, that on the same day he received a confidential information that appellant no. 1 was dealing in Heroin. A raiding party was organised which included Dy S.P. Buxar and a raid at the house of appellant no. 1 was conducted. On search 200 gram of Heroin besides a country made pistol with a live cartridge was recovered from the possession of appellant no. 1 in presence of P.Ws. 5 and 10. A seizure list (Ext. 1) was prepared. Small quantity out of 200 gram of Heroin was sent for chemical examination at Forensic Science Laboratory, Patna which reported that it contained Heroin. Appellant no. 1 disclosed that he had obtained the Heroin from appellant no. 2, Sudama Devi and it was to be supplied to another person. Rajpur RS. Case No. 63/99 was recorded under sections 20(B)(ii)/21 of the Act.

(3.) THE defence of the appellants was that they are innocent and had not committed any offence. They have been falsely implicated in this case and no Narcotic drugs much less Heroin was recovered from their possession. The seizure list witnesses have not supported the case of the prosecution. No independent and competent witness has been examined in this case. Appellant no. 2 is a lady and according to section 50(4) of the Act a female has to be searched by another female only. But appellant no. 2 was not searched by any female as no female constable was with the raiding party. Moreover according to section 50 of the Act the search and seizure has to be made before a Gazetted Officer. Only negligible quantity of Heroin has been alleged to have been recovered from the appellants. On these grounds amongst other it was prayed that the judgment of conviction of the learned court below be set aside and the appellant be acquitted.