Research › Search › Judgment

Madhya Pradesh High Court · body

2005 DIGILAW 233 (MP)

BANSHILAL PATIDAR v. STATE OF M P

2005-02-14

A.K.AWASTHY

body2005
Judgment ( 1. ) APPELLANT/accused has filed the appeal against the judgment and order dated 14-8-2002 in Special Case No. 109/99 by Special Judge NDPS Act, mandsaur of his conviction and sentence under Section 8/18 of the Narcotics drugs and Psychotropic Substance Act (in short NDPS Act) for the rigorous imprisonment for 10 years and fine of Rs. 1 lakh and in default of payment of fine, further rigorous imprisonment of 2 years. ( 2. ) THE case of the prosecution is that on 14-6-99 at about 9 PM at police Station, Bhanpura Station House Officer Shersingh (P. W. 9) received the secret information that the accused is transporting the opium on his Motor cycle and after sending the information to the SDOP Garoth, the Seizing officer (P. W. 9) alongwith the Police force and the witnesses reached near the dargha and accused was intercepted while he was going on the Motor Cycle. That accused was apprised of his right of search before the Gazetted Officer or the Magistrate and the accused has consented his search by Shersingh (P. W. 9 ). The consent memo is Ex. P-8. That in the search on the carrier of the Motor cycle the bag containing 5 kg 100 gm opium was found and after extracting 30-30 gm of the opium, the sample packet and the seized opium was packed and sealed. That the accused along with the Motor Cycle and Muddemal was taken to the Police Station and the case was registered against the accused. That muddemal was handed over in the safe custody to Head Constable Machalsingh (P. W. 6) and information under Section 57 was sent to the higher authority. The fsl Indore has submitted the report Ex. P-26 that the contents in the sample packets were opium. Shersingh (P. W. 9) conducted the investigation and filed the charge-sheet. ( 3. ) THE accused has abjured the guilt and pleaded false implication due to enmity. ( 4. ) THE learned Trial Court after examining 9 prosecution witnesses has held that the accused was found in possession of the opium and he was convicted and sentenced as stated above. ( 5. ( 3. ) THE accused has abjured the guilt and pleaded false implication due to enmity. ( 4. ) THE learned Trial Court after examining 9 prosecution witnesses has held that the accused was found in possession of the opium and he was convicted and sentenced as stated above. ( 5. ) THE appellant has assailed the conviction on the ground that on account of the contradiction in the statement of the Seizing Officer as they are not duly corroborated by the panch witness, the learned Trial Court has erred in holding the appellant guilty. It is further alleged that there is a violation of provisions of Sections 42,50 and 57 of the NDPS Act and as such, the appellant accused should be acquitted. ( 6. ) SEIZING Officer ASI Shersingh (P. W. 9) has stated that on 14-6-99 the secret information was received against the accused in the Police Station and he reached at the Dargha with the Police force and at about 11 P. M. the accused was seen coming on the Motor Cycle and in the search a bag on the carrier of the Motor Cycle was found in which there was opium weighing 5 kg 100 gm. The statement of Shersingh (P. W. 9) is fully corroborated by the statement of Constable Rajkumar (P. W. 7) who was with the raiding party. It is contended by the learned Counsel for the defence that the fact that the bag was found in the carrier of the Motor Cycle is not mentioned in panchnama and the seizure memo and as such, the statement of the Seizing Officer is doubtful. From panchnama Ex. P-10 it is clear, that the bag was on the carrier is not important lapse and it is incapable of creating the doubt in the statement of the Seizing officer. ( 7. ) ANIL Choudhary (P. W. 3) and Subhash Arora (P. W. 4) have stated that the opium was not recovered from the accused in their presence. The prosecution has declared him as a hostile witness. Both the witnesses have admitted their signature on seizure memo and panchnama Exs. P-4 to P-7 and they have not given any explanation of signing these documents. Consequently, it is clear that Anil Choudhary (P. W. 3) and Subhash Arora (P. W. 4) are having enmity and they have turned hostile. The prosecution has declared him as a hostile witness. Both the witnesses have admitted their signature on seizure memo and panchnama Exs. P-4 to P-7 and they have not given any explanation of signing these documents. Consequently, it is clear that Anil Choudhary (P. W. 3) and Subhash Arora (P. W. 4) are having enmity and they have turned hostile. It is observed in case of P. P. Fatma Vs. State of Kerala, 2004 SCC (Cri.) Page 1 that if the statement of the Seizing officer are trust worthy and reliable, then the fact that the panch witness have not supported the prosecution is of no consequence. The learned Counsel for the appellant has failed to point out any material contradiction or infirmity in the statement of Seizing Officer Shersingh (P. W. 9) and Constable Rajkumar (P. W. 7 ). These witnesses have no axe to grind against the accused and no reason exists to doubt their testimony. Consequently, the learned Trial Court has rightly believed their statement and concluded on the basis of their statement that the opium weighing 5 kg 10 gm was recovered from the possession of the accused. ( 8. ) THE learned Counsel for the appellant has pleaded that on ac-count of the contravention of provisions of Section 42 of the NDPS Act, the conviction is bad in law. It is held in case of Narayanaswalmy Ravi Shankar Vs. Directorate of Revenue Intelligence, 2003 Cr. LJ 27 (SC) that provision of Section 43 are applicable where search was conducted at a public place. The accused was apprehended in public place and the opium was recovered from his Motor cycle and as such, the provisions of Section 42 of the NDPS Act are not applicable but the case is covered by Section 43 of the NDPS Act. However, from the statement of the Seizing Officer and Constable Kanhaiyalal (P. W. 5)it is clear that the opinion regarding the secret information was sent immediately to SDOP Garoth. Head Constable H. S. Sengar (P. W. 1) has also testified that on 14-6-99 the information from the Police Station was received that the Seizing officer was apprised that the accused is carrying the contraband. Consequently, from the evidence it is clear that the provisions of Section 42 of the NDPS Act were promptly complied. ( 9. Head Constable H. S. Sengar (P. W. 1) has also testified that on 14-6-99 the information from the Police Station was received that the Seizing officer was apprised that the accused is carrying the contraband. Consequently, from the evidence it is clear that the provisions of Section 42 of the NDPS Act were promptly complied. ( 9. ) THE statement of Seizing Officer and Constable Kanhaiyalal (P. W. 5) proved that the information under Section 57 of the NDPS Act was sent just after the seizure of the contraband from the accused to the SDOP. Reader of the SDOP H. S. Sengar (P. W. 1) also testified that the information under Section 57 was received in the office of SDOP. Consequently, the prompt compliance of Section 57 of the NDPS Act was also proved. ( 10. ) SEIZING Officer Shersingh (P. W. 9) has testified that the Mudde-mal was deposited by him on 14-6-99 in the Malkhana of the Police Station. Head Constable Machal Singh (P. W. 6) has stated that he was Malkhana in charge and the opium along with the sample packet was deposited in the Police station by the Seizing Officer. Ex. P-21 is the Malkhana Register which corroborates the aforesaid statement. It is also proved from the statement of Head constable Machal Singh (P. W. 6) and Constable Sultan Singh (P. W. 2) that just after 2 days of the seizure of the contraband, the sealed packets were sent to fsl Indore. The report of FSL Indore is Ex. P-26 from which it is clear, that the sealed packets were duly packed and sealed. It is contended by the learned defence Counsel that the sample packets were kept in the small cotton bag. That according to the Seizing Officer while from the report of the FSL it appears that the sample packet was rapped by the cotton. This contradiction is minor and from the report of the FSL. It does not appear that the packets were not kept in a cotton bag. It is not necessary to mention in the FSL report that whether the sample packet was rapped in a plain cotton cloth or in a cotton bag. The report of the FSL clearly indicates that the contents are opium. Conse-quently, there is a compliance of the provisions of Sections 52,55 and 57 of the ndps Act. It is not necessary to mention in the FSL report that whether the sample packet was rapped in a plain cotton cloth or in a cotton bag. The report of the FSL clearly indicates that the contents are opium. Conse-quently, there is a compliance of the provisions of Sections 52,55 and 57 of the ndps Act. It is observed in case of Megh Singh Vs. State of Punjab, 2003 AIR scw 4536, that in case of the recovery of contraband from the bag the provision of Section 50 of the NDPS Act are not applicable. ( 11. ) CONSEQUENTLY, the learned Trial Court has not committed any error in holding that there is no violation of the provisions of the NDPS Act and the learned Trial Court has rightly convicted the accused under Section 8/18 of the NDPS Act. The sentence in default of payment of fine of 2years is assailed by the appellant on the ground that the appellant is a poor villager and is incapable of paying the fine. Consequently, the sentence of imprisonment in default of payment of fine deserves to be reduced from 2 years to only one year. ( 12. ) THE conviction and sentence under Section 8/18 of the NDPS Act, is hereby, confirmed. Appeal deserves to be dismissed with the minor modification that is in the default of payment of fine, the appellant accused will undergo the rigorous imprisonment for one year instead of two years. Criminal Appeal dismissed.