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2004 DIGILAW 255 (MP)

JAGDISH v. STATE OF M P

2004-03-15

A.K.AWASTHY

body2004
Judgment ( 1. ) APPELLANT/accused has filed this appeal against the judgment and order dated 2-4-95 in Special Case No. 9/97, passed by the learned Special Judge ndps Act, Ujjain against the conviction and sentence for the offence punishable under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act (for short "ndps Act") of R. I. of 10 years with fine of Rs. 1 lac and in default of payment of fine further R. I. for 2 years. ( 2. ) PROSECUTION case is that on 23-1-97 at about 9. 10 PM ASI maohansingh Jadon (P. W. 7) received an information in the Police Station, jivajiganj, Ujjain about the illicit trafficking of opium and the "panchnama" (Ex. P-l) was prepared by him and the information vide "rojnamcha" (Ex. P-14) was sent to the CSP. That Mohansingh Jadon proceeded with the police party and the accused was found near the "sabji Mandi", where he was informed that he is suspected of carrying the opium. Mohansingh Jadon (P. W. 7) informed the accused that he has a right of his search before the Gazetted officer or the Magistrate and the accused consented his search by him of which consent memo (Ex. P-2) was prepared before the "panchas". The seizing officer found 1. 250 kgs, of opium from the bag of the accused and the 2 samples of 50 gms each were drawn from the seized item. The "muddemal" was sealed. That the seizure memo (Ex. P-6) was prepared and, thereafter, the accused along with the "muddemal" was taken to the Town Inspector R. S. Chudawat (P. W. 8 ). ( 3. ) R. S. Chudawat (P. W. 8) recorded the FIR and informed the recovery of the contraband from the accused to the Superintendent of Police. That the "muddemal" was kept in the safe custody in the police station and, thereafter, one of the sample packets was sent to the FSL, Indore. The report of the FSL, Indore dated 30-1-97 is Ex. P-21 in which it was opined that the contents carries 3. 56 % morphin and it was opium. The investigation was conducted by R. S. Chudawat (P. W. 8) and the charge-sheet was filed against the accused under Section 8/18 of the NDPS Act on 8-3-97 in the Sessions court, Ujjain. ( 4. P-21 in which it was opined that the contents carries 3. 56 % morphin and it was opium. The investigation was conducted by R. S. Chudawat (P. W. 8) and the charge-sheet was filed against the accused under Section 8/18 of the NDPS Act on 8-3-97 in the Sessions court, Ujjain. ( 4. ) THE accused abjured the guilt and he has denied the prosecution allegations and the defence of the accused is that he has been falsely implicated on account of quarrel with the police personnels. No evidence in defence was adduced by the accused. ( 5. ) THE prosecution has examined "panch" witness Sattar (P. W. 1), kanhaiyalal (P. W. 2), Constable Vikramlal (P. W. 3), CSP Mahendrasingh (P. W. 4), Head Constable Bhagwansingh (P. W. 5), Constable Suresh Kumar (P. W. 6), ASI Mohansingh Jadon (P. W. 7) and ASI R. S. Chudawat (P. W. 8)and the learned Trial Court has held that the prosecution has followed the mandatory provisions and the accused was found in possession of the opium and he was convicted and sentenced stated above. ( 6. ) THE learned Counsel for the appellant has challenged the comviction on the ground that the learned Trial Court has erred in believing statements of the prosecution witnesses to the effect that the contraband opium was seized from the possession of the accused. That the learned Trial court has also erred in concluding that the procedural safe guards provided under Sections 42,50,52,55 and 57 of the NDPS Act were followed. ( 7. ) MOHANSINGH Jadon (P. W. 7) has stated that on 23-1-97 when he was posted as Sub Inspector, Police Station, Jivajiganj, Ujjain, at 9. 10 PM he has recorded the secret information in the "rojnama" (Ex. P-l) about illicit trafficking of the opium and sent the copy of the "rojnamcha" to the CSP through Constable Suresh Kumar (P. W. 6 ). Mohansingh Jadon has stated that he took the "panch" witnesses Sattar (P. W. 1) and Hamid and proceeded with the police party and near the "sabji Mandi", the accused was apprehended and he was appraised of his right of search before the Gazetted Officer or the magistrate. It is further testified that the accused opted for his search by mohansingh Jadon (P. W. 7) and the consent memo (Ex. It is further testified that the accused opted for his search by mohansingh Jadon (P. W. 7) and the consent memo (Ex. P-2) was prepared and, thereafter, in the search of the bag of the accused black substance was found which on weighment was 1. 250 kgs. It is further stated that 2 samples of 50 gms each were drawn from the seized item and the samples along with the item were sealed and after arrest of the accused the "muddemal" along with the accused were handed over in the police station to Sub Inspector R. S. Chudawat (P. W. 8 ). Sattar (P. W. 1) has testified that the information received from the approver by the ASI was given to the CSP and, thereafter, with the police party he proceeded on the spot and the accused was told that he has a right of his search before the Magistrate or the Gazetted Officer. Sattar (P. W. 1) has stated that in the search of the bag of the accused opium was found which on weighment was 1. 250 kgs. and, thereafter, the 2 samples of 50-50 gms were drawn from the seized item and samples along with seized item were sealed. Sattar (P. W. 1) has no enmity with the accused nor he is not having any such relation with the police, which will prompt him to give false evidence against the accused. Appellant has failed to show any reason to doubt the veracity of the statement of Sattar (P. W. 1 ). ( 8. ) CONSTABLE Vikramlal (P. W. 3) has stated that the information was received by ASI Jadon, who, after preparing the, "panchnama" and informing the superior authority, proceeded along with the police party to the spot, where the accused was found carrying a bag and in the search of the bag opium was recovered. In the cross-examination of Vikramlal (P. W. 3) learned counsel for the accused has asked few questions and there is nothing to create an iota of doubt in the correctness of his statement. Consequently, from the statement of Mohansingh Jadon (P. W. 7), "panch" witness Sattar (P. W. 1) and constable Vikramlal (P. W. 3) it is established beyond reasonable doubt that from the bag of the accused opium weighing 1. 250 kgs was recovered. ( 9. Consequently, from the statement of Mohansingh Jadon (P. W. 7), "panch" witness Sattar (P. W. 1) and constable Vikramlal (P. W. 3) it is established beyond reasonable doubt that from the bag of the accused opium weighing 1. 250 kgs was recovered. ( 9. ) CONSTABLE Suresh Kumar (P. W. 6) has stated that on 23-1-97 he has taken the letter from the Police Station, Jivajiganj to CSP Kotwali about the information of the approver. From the statement of Mohansingh Jadon (P. W. 7) and Sattar (P. W. 1) it is clear that "panchnama" (Ex. P-l) was prepared of the secret information of illicit trafficking of opium and the information was sent to the superior officers. Consequently, it is proved that the provisions of Section 42 of the NDPS Act was duly complied with by recording the information of the approver and sending it immediately to the superior officers. ( 10. ) LEARNED Counsel for the appellant alleged that the provisions of Section 50 of the NDPS Act were not complied with and as such the entire proceeding is vitiated against the accused. It is held in case of Meghsingh Vs. State of Punjab, 2003 AIR SCW 4536, that the provisions of Section 50 are not applicable in case of recovery of the contraband from the bag. These provisions apply only in case of recovery from the personal search of the accused. Consequently, the question of compliance of Section 50 of the NDPS Act does not arise in the facts and circumstances of the case. ( 11. ) MOHANSINGH Jadon (P. W. 7) has stated that the accused was informed that he is being arrested for carrying the illicit opium and after his arrest he was taken along with the sealed sample packets and the seized items to the police station. R. S. Chudawat (P. W. 8) has testified that he was posted as Town Inspector for Jivajiganj, Ujjain and on 23-1-97 at 11. 20 PM the accused was brought by Mohansingh Jadon (P. W. 7) and the sealed packets given by him were kept in the "malkhana" of the police station. R. S. Chudawat (P. W. 8) has testified that he was posted as Town Inspector for Jivajiganj, Ujjain and on 23-1-97 at 11. 20 PM the accused was brought by Mohansingh Jadon (P. W. 7) and the sealed packets given by him were kept in the "malkhana" of the police station. Bhagwansingh (P. W. 5), who was the Head Constable and the "malkhana" in charge has stated that on 23-1-97 at about 11 PM he was entrusted with the seized packet along with the sample packets which was again sealed by him in the police station and it was kept in the "malkhana". ( 12. ) BHAGWANSINGH (P. W. 5) has stated that on 25-1-97 one sample packet was sent by him for the examination to the FSL, Indore. The report of the Chemical Analyst of FSL, Indore is Ex. P-21, from which it is clear that the Constable Sharad Kumar has brought the sample packet from Police station, Jivajiganj, Ujjain and on comparing the seal on sample with sample seal it was found duly sealed. It is further stated in report (Ex. P-21) that after the Chemical Analysis the contents were having 3. 56% Morphin and it was opium. Consequently, it is clear that the provisions of Sections 52 and 55 were duly complied with and the same sample was sent to the FSL, Indore, which was seized from the possession of the accused. The statements of Town inspector R. S. Chudawat (P. W. 8) proves that on 24-1-91 he has sent the report (Ex. P-19) to the Superintendent of Police about the arrest and the registration of the case against the accused as provided under Section 57 of the NDPS Act. Consequently, it is established that all the procedural safeguards were taken by the police during investigation. The learned Trial Court has not committed any error in holding that the accused was found in conscious possession of the opium and there was no violation in the case of statutory procedural provision of the NDPS Act. ( 13. ) THE appeal is devoid of merit and is hereby dismissed. Criminal Appeal dismissed.