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Madhya Pradesh High Court · body

2002 DIGILAW 970 (MP)

MOHANLAL BADRILAL LUHAR v. STATE OF M. P.

2002-10-22

S.L.KOCHAR

body2002
S. L. KOCHAR, J. ( 1 ) THIS Criminal Appeal also governs the disposal of Criminal Appeal No. 1260/97 filed by the appellant through jail. The aforesaid Crl. Appeals have been preferred by the appellant against judgment dated 13-10-1997 delivered by ASJ Garoth Camp at Bhanpura District Mandsaur in Special Case No. 135/96, thereby convicting the appellant for the offence punishable under S. 8-18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') and sentencing him to undergo Rigorous Imprisonment for 10 years with fine of Rs. 1,00,000/- in default of payment of fine, further imprisonment for 2 years. ( 2 ) THE prosecution case, before the trial Court, in nutshell, was that on 26/07/1996 at about 10. 05 a. m. ASI Ramyash Tiwari (P. W.-10) of GRP Police Station Shyamgarh, received an information through the informant that one person wearing Payjama and Shirt, carrying opium with him and is waiting for Deharadoon Express on platform No. 1 for going to Baroda. This information was written in ROJNAMCHA at Police Station. On the basis of the said information, Panchanama, Ex. P/10 was prepared. Copy of the same was immediately sent to Superior Officers and the same was received by Vijay Shukla (P. W. 1) Constable SRP Indore (SP GRP Office ). Thereafter, Police Squad went to Indore for investigation. Trap was arranged on platform No. 1 and in presence of witnesses, accused Mohanlal was caught. The accused was apprised of the information received at Police Station and he gave his search to the police. On his personal search, 250 gms opium was recovered at the instance of the accused Mohanlal and he was arrested for the offence under S. 8/18 of the Act. Out of recovered article 2 samples weighing 30 gms, each were prepared and the same were seized for sending its Chemical Analysis, Seizure memo Ex. P/12 was prepared after seizure of the article, FIR Exh. P/24 was lodged at Police Station. 2 samples of sealed packets, one passenger ticket and two samples of seal were deposited at 12-15 p. m. in Malkhana through Malkhana In-charge, Ashok Singh (PW. 2 ). Entries were made in Malkhana Register vide Exh. P/3a to this effect. ( 3 ) ON 3/08/1996, one sample of seal and one packet of sample with draft were sent to FSL Indore through Constable Omprakash (P. W.-3 ). 2 ). Entries were made in Malkhana Register vide Exh. P/3a to this effect. ( 3 ) ON 3/08/1996, one sample of seal and one packet of sample with draft were sent to FSL Indore through Constable Omprakash (P. W.-3 ). He has deposited the same at FSL Indore and obtained the receipt Ex. P/4. The information, as per Provision under S. 57 of the Act was also sent to S. P. GRP on 27-7-1996 vide Ex. P/27 by C. L. Verma (P. W. 11) ASI. ( 4 ) ACCORDING to FSL Report Exh. P/33, seal affixed on the packet tallied with the sample of seal and on analysis, the sample was found containing opium. The appellant was prosecuted and tried for the offences punishable under S. 8/18 of the Act. On completion of trial, he was found guilty and sentenced as indicated above. This is the impugned judgment under challenge in this Criminal Appeal. ( 5 ) LEARNED counsel for the appellant, has mainly canvassed about breach of compliance of Sections 50 and 55 of the Act regarding improper option given to the appellant about his search and seizure and non fixing of seal of SHO on the seized article. He has also put forth that CFSL Form was not deposited in Malkhana. Learned counsel has relied on the following decisions in favour of non-compliance of Section 55 of the Act. (1) 1996 (1) ER 227 (P and H); Lalsingh v. State of Punjab (Para 11) (ii) 1993 (2) Crimes 1130 , Balaram v. State of Rajasthan (Para 7) (iii) 1997 (8) EFR 589 (P and H), Karnailsingh v. State of Punjab (Paras 6, 7) (iv) 1995 (2) Crimes 716, Makhanram v. State of Punjab (Paras 9, 10) (v) 1991 (2) EFR 593, Mohd. Shamim v. State (Para 8) (vi) 1995 (2) EFR 199 : (1995 Cri LJ 1623), Amarjitsingh v. State (Delhi HC. Paras 5, 7, and 8) learned counsel also submitted that Chemical Examiner, who has given report, Exh. P/33, has not been examined. As such this report, cannot be considered. In this regard the counsel placed reliance on the judgment of this Court passed in Kaniram v. State of M. P. 2001 (2) EFR 74. ( 6 ) IN oppugnation, Mr. Girish Desai, Dy. Advocate General, appearing for the State, submitted that all mandatory provisions have been, properly and with due diligence, complied with. In this regard the counsel placed reliance on the judgment of this Court passed in Kaniram v. State of M. P. 2001 (2) EFR 74. ( 6 ) IN oppugnation, Mr. Girish Desai, Dy. Advocate General, appearing for the State, submitted that all mandatory provisions have been, properly and with due diligence, complied with. He further, submitted that Chemical Examiner's report, Ex. P/33 is given by Regional Legal Scientific Laboratory, Rau, Indore and this Laboratory, has been, established under the State Forensic Science Laboratory, Sagar by order dated 4th Dec. 1992. Therefore, the report given by this laboratory, is fully covered under Section 293 (1)/s. 4 (1) of the Code of Criminal Procedure. He has also filed relevant notification to this effect. ( 7 ) HAVING heard learned counsel for the parties and after careful perusal of the entire record of the case, it emerged that the decision of this Court given in Kaniram's case (2001 (1) EFR 74) (supra) is not applicable to the case on hand because in this case Chemical Analyst's report, has been given by the Regional Laboratory, Indore which is duly covered under S. 293 (1)/s. (4) (1) of the Cr. P. C. whereas in the case of Kaniram (supra) the report was given by Chemical Examiner of the Govt. Opium and Alkaloid Factory, Neemuch. Apart from this, if the appellant wanted to examine Chemical Examiner, he could have filed appropriate application to this effect and Court has power under S. 293, Cr. P. C. to call any such expert as to the subject matter of his report. It is not mandatory for the prosecution to examine Chemical Examiner or Assistant Chemical Examiner. ( 8 ) MUCH emphasis has been laid for non-compliance of Section 55 of the Act, which reads as under :"s. 55. P. C. to call any such expert as to the subject matter of his report. It is not mandatory for the prosecution to examine Chemical Examiner or Assistant Chemical Examiner. ( 8 ) MUCH emphasis has been laid for non-compliance of Section 55 of the Act, which reads as under :"s. 55. Police to take charge of articles seized and delivered :- an officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under the Act within the local area of that police station and which may be delivered to him and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station. " ( 9 ) IN the present case Mukhbir information was received by ASI Ramyash Tiwari (P. W.-10), and thereafter, he proceeded with Krishnarao Sambhare (P. W.-8) and other Panch witnesses. He had taken a seal of Police Station along with him and after seizure of opium affixed the seal on each packet. As per the statements of C. L. Verma (P. W.-11) since he was out of station from 25-7-1996 and reached Police Station on 26/07/1996 in the night at 9. 30 p. m. (21. 30 ). Therefore, during this period, Ramyash Tiwari (P. W.-10) was the in-charge of the Police Station. He effected search and seizure and used the seal of Police Station on the packets of seized article. Immediately on the same day, at about 12. 15 p. m. he deposited two sealed packets of samples and 2 samples of seal, one passenger ticket, seized from the possession of the appellant. This has been duly proved by Ashok Singh (P. W. 2), Head Constable and copy of Exh. P/3a, Malkhana Register. ( 10 ) ON 3/08/1996, one packet of sealed sample, sample of seal and draft were sent to laboratory with Omprakash (P. W.-3), who has deposited the same, on the same day at FSL Indore. According to FSL Report, Ex. P/33 seal on the packet tallied with the seal of sample. P/3a, Malkhana Register. ( 10 ) ON 3/08/1996, one packet of sealed sample, sample of seal and draft were sent to laboratory with Omprakash (P. W.-3), who has deposited the same, on the same day at FSL Indore. According to FSL Report, Ex. P/33 seal on the packet tallied with the seal of sample. ( 11 ) IN the light of this evidence, there is absolutely no, non-compliance of S. 55 of the Act with regard to sealing of sample and the seal of officer-in-charge of the police station. ( 12 ) LEARNED counsel has placed reliance on the judgment of Delhi High Court passed in the case of Amarjeet Singh's case (supra) regarding non-depositing of CFSL form in Malkhana along with the case property. I have gone through this judgment. In paragraphs 5, 7 and 8, the question of depositing of CFSL form, has been discussed. It appears that the Court has considered this aspect only to strengthen the fact that seized property was properly sealed and kept in-tact containing the same seal which was affixed on the seized property till it reaches the hands of chemical examiner. In the present case, the statement of Head Constable Ashok Singh (P. W.-3), Omprakash (P. W.-3), ASI Tiwari (P. W.-10) and Sub-Inspector C. L. Verma (P. W.-11) are categorically establishing the fact that seized contraband article, was duly sealed on the spot by affixing the seal of Police Station. Thereafter, immediately on the same day, case property was deposited in Malkhana. Along with sample of seal, one sealed sample packet with draft were sent through Omprakash (P. W.-3) Constable to FSL on 3-8-1996 and the same were received on the same day. The Chemical Examiner received the property and found the seal intact tallying with the sample of seal. Apart from this, under Act as well as Rules framed thereunder, there is no specific provision for depositing CFSL form in Malkhana. ( 13 ) IN the judgment of Delhi High Court in Amarjeet Singh's case supra) also there is no mention of specific provision in the Act or Rules framed thereunder by the Central Government or the State Government in regard to depositing of CFSL form in Malkhana. ( 13 ) IN the judgment of Delhi High Court in Amarjeet Singh's case supra) also there is no mention of specific provision in the Act or Rules framed thereunder by the Central Government or the State Government in regard to depositing of CFSL form in Malkhana. Purpose of depositing CFSL form in Malkhana is shown in the case of Amarjeet Singh (supra) to ascertain that sample was kept intact right from the time of its seizure and sealing till reaching the hands of Chemical Examiner. For this purpose, in the present case, there is sufficient cogent and reliable evidence. ( 14 ) LEARNED counsel has also pressed into service non-compliance of Section 50 of the Act but there is no substance in this point because document Ex. P/7 consent panchanama, statements of Krishnarao Sambhare (P. W.-8) as well as Ramyash Tiwari (P. W.-10) are clearly establishing that the appellant was given choice to be searched before the Magistrate or Gazetted Officer. This consent document, Ex. P/7 is duly signed by the appellant. He himself has given the consent to be searched by ASI Ramyash Tiwari (P. W.-10) in his own handwriting and also signed the document. ( 15 ) IN the wake of the aforesaid legal and factual analysis, this Court records its concurrence with the judgment of conviction passed by the Court below. ( 16 ) CONSEQUENTLY, this Criminal Appeal as well as Criminal Appeal No. 1260/97 stand dismissed. ( 17 ) COPY of this judgment be placed in connected Criminal Appeal No. 1260/97. Appeal dismissed. .