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Madhya Pradesh High Court · body

2005 DIGILAW 186 (MP)

PEER BUX KHAN v. STATE OF M P

2005-02-08

A.K.AWASTHY

body2005
Judgment ( 1. ) APPELLANTS have filed the appeal against the judgment dated 18-11-1998 passed by learned Special Judge Mandsaur in Special Case No. 7/97 of their conviction and sentence under Section 8 read with Section 18 of the Narcotics drugs and Psychotropic Substances Act, 1985 (hereinafter referred in short as ndps Act) for the rigorous imprisonment for 10-10 years and fine of Rs. 1-1 lakh and in default of payment of fine further rigorous imprisonment of 2-2 years. ( 2. ) THE prosecution case is that on 14-1-1997 at about 12 AM in the morning at Police Station Nahargarh Station House Officer R. K. Singh (P. W. 5) received the secret information on the telephone that the accused persons are trafficking the opium and they will catch the bus near the culvert of Tumbad river and after recording the information and sending it to the Superior Officer, the Station House Officer along with Head Constable Prahlad witness Bherulal (P. W. 1) and Ramchandra (P. W. 2) reached on the spot and both the accused persons were found holding the bags in their hand. The Station House Officer apprised them about the information and they were told that they have a right of their search either before the Gazetted Officer or the Magistrate. The accused persons consented their search by the Station House Officer R. K. Singh (P. W. 5) vide consent memo Exs. P/2 and P/3. That in the search of the bags of each accused persons, the opium weighing 3-3 kg was found and after drawing sample of 30-30 gm from the seized item it was scaled and after arrest of the accused, the accused was taken to the Police Station where FIR was registered against the accused persons. ( 3. ) THE information under Section 57 of the NDPS Act was sent to the SDOP from Constable Santosh Kumar (P. W. 7) and this information Ex. P-27 was received by Reader of the SDOP Suresh Babu Sharma (P. W. 6 ). The sample packets were given to Constable Ram Khilawan (P. W. 3) who has deposited it in the FSL Indore. After the chemical examination of the FSL indore has given the information vide Ex. P-30 that the contents were opium poppy. P-27 was received by Reader of the SDOP Suresh Babu Sharma (P. W. 6 ). The sample packets were given to Constable Ram Khilawan (P. W. 3) who has deposited it in the FSL Indore. After the chemical examination of the FSL indore has given the information vide Ex. P-30 that the contents were opium poppy. Investigating Officer Ajay Mishra (P. W. 10) after recording the statement of the witnesses presented the charge sheet against the accused persons under Section 8/18 of the NDPS Act before the Special Court. ( 4. ) THE accused persons have abjured the guilt and they have denied the prosecution allegation and pleaded the false implication. The accused persons have not examined any witness in their defence. ( 5. ) THE learned Trial Court has examined 10 prosecution witnesses and it was held that the prosecution has proved the case against the accused persons and as such, the accused were convicted and sentenced as stated above. ( 6. ) THE appellants have assailed the conviction on the ground that the learned Trial Court has erred in believing the un-corroborated testimony of the Station House Officer R. K. Singh (P. W. 5) and on account of the violation of the mandatory provisions of Sections 42, 50 and 57 of the NDPS Act, the conviction is bad in law and accused deserved acquittal. ( 7. ) STATION House Officer R. K. Singh (P. W. 5) has stated that the secret information received against the accused persons on the telephone was reduced in writing and a copy of the information was sent to SDOP Sitamau through Constable Santosh, R. K. Singh (P. W. 5) has further stated that he along with the Police party and the witnesses reached to the culvert of the river where both the accused persons were standing and they have informed about the secret information against them and option was given to them that they can get their search conducted by the Gazetted Officer or by the Magistrate. That accused persons consented their search by him and signed the consent memo Ex. P-2 and P/3. That accused persons consented their search by him and signed the consent memo Ex. P-2 and P/3. That during the search of the bag of accused Peer Bux 3 kg of opium was seized and in the search of the bag of Rameshwar also 3 kg opium was found and the sample of 30-30 gm were drawn and sealed and after the arrest, the accused were taken to the Police Station and the information under Section 57 of the NDPS Act was sent on the same day to the SDOP Sitamau. The statement of SHO R. K Singh (P. W. 5) is fully corroborated by the statement of the Head constable Prahlad (P. W. 9) who was in the Police party. The seizure witness bherulal (P. W. 1) and Ramchandra (P. W. 2) have said nothing about the seizure from the accused and prosecution has declared them hostile. There is nothing in the cross-examination of the Station House Officer R. K. Singh (P. W. 5) and head Constable Prahlad (P. W. 9) to doubt the testimony. It is observed in the case of P. P. Fatma Vs. State of Kerala, 2004 SCC (Cri) Page 1 that mere fact that the panch witness does not support the prosecution case by itself would not make the prosecution case any less acceptable, if otherwise the Court is satisfied from the material on record and the evidence of the Seizing Authority that such seizure was genuinely made. ( 8. ) CONSTABLE Santosh Kumar (P. W. 7) has stated that on 14-1-97 in the morning he has taken the written secret information from the Police Station to be handed over to SDOP. Santosh Kumar (P. W. 7) has further stated that he in the evening he took the information under Section 57 of the NDPS Act from the Police Station to the SDOP. The Reader of the SDOP Suresh Babu sharma (P. W. 6) has corroborated him and it is stated that in the morning he received the information Ex. P/25 and in the evening the information Ex. P-27 from Police Station Nahargarh. It is further stated by him that the papers Exs. P-25 and Ex. P-27 were submitted by him to the SDOP. Consequently, it is clear that the compliance of Sections 42 and 57 of the NDPS Act was promptly done on 14-1-97 by the Station House Officer. P/25 and in the evening the information Ex. P-27 from Police Station Nahargarh. It is further stated by him that the papers Exs. P-25 and Ex. P-27 were submitted by him to the SDOP. Consequently, it is clear that the compliance of Sections 42 and 57 of the NDPS Act was promptly done on 14-1-97 by the Station House Officer. From the statement of SHO R. K. Singh (P. W. 5) and Head Constable Prahlad (P. W. 9) it is proved that both the accused persons were apprised of the option to get themselves searched before the magistrate or the Gazetted Officer. Consequently, the allegation of the non-compliance of Section 50 of the NDPS Act is against the evidence on the record. However, it is held in case olmegh Singh Vs. State of Punjab, 2003 AIR SCW 4536 that in case of the recovery of the contraband from the bag of the accused, the provision of Section 50 of the NDPS Act does not apply. ( 9. ) THE learned Counsel for the appellants have cited the case of beckodan Abdul Rahiman Vs. State of Kerala, 2002 AIR SCW 1780 to advance the argument that the compliance of Sections 42 and 50 of the NDPS Act should be strictly proved as the provisions of the Act are harsh. However, in view of the overwhelming evidence of the compliance of the provisions of Sections 42, 50, 57 of the NDPS Act, it is held that there is a proper compliance of the directions laid down in the NDPS Act. ( 10. ) THE learned Counsel has relied on the case of Bahadur Singh Vs. State ofmadhya Pradesh, 2001 AIR SCW 5008 where on account of the serious discrepancies in the evidence of the witness regarding the recovery and seizure it was held that the conviction on the basis of the sole testimony of the Police witness is not tenable. The learned defence Counsel has argued that there is an over writing in some of the memorandums prepared by the SHO R. K. Singh (P. W. 5 ). The learned Trial Court has dealt with the over writing in time in some of the panchnama and it is rightly held by the learned Trial Court that they are not material and as such, in-consequential. ( 11. The learned Trial Court has dealt with the over writing in time in some of the panchnama and it is rightly held by the learned Trial Court that they are not material and as such, in-consequential. ( 11. ) THE sample packets were given to Constable Ram Khilawan (P. W. 3) after 2 days of the seizure on 16-1-97 to be taken for the chemical examination to FSL Indore. Ram Khilawan (P. W. 3) has stated that on 16-1-97 he took the sealed packet from the Police Station and on 20-1-97 they were given to the FSL Indore. The report of FSL Indore Ex. P-30 clearly indicates that the packets were duly sealed and after the comparison of the seals from the sample sealed, it was found that the seals were not tampered. There is nothing in the evidence of the SHO or Constable Ram Khilawan (P. W. 3) that the sample packet were tampered with. The sample packets were handed over for the examination to FSL Indore within 5 days of the seizure. The report Ex. P-30 clearly indicates that the contents were opium. Consequently, the learned Trial court has rightly held the accused persons guilty for the offence punishable under Section 8/18 of the NDPS Act and the minimum prescribed sentence was rightly awarded to the accused persons. ( 12. ) THE appeal is without merit and is, hereby, dismissed. Criminal Appeal dismissed.