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Madhya Pradesh High Court · body

2011 DIGILAW 571 (MP)

Kallu alias Kodi Lal v. State of M. P.

2011-05-07

M.A.SIDDIQUI

body2011
JUDGMENT : This is an appeal preferred by the appellant feeling aggrieved by the judgment dated 30/10/09 Special Judge (NDPS), Jabalpur in Special Criminal Case No. 15/08 by which appellant has been convicted and sentenced for five years R.I. under Section 8/20(b)(ii)(B) of The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and fine of Rs.15,000/-, in default of payment of fine to further undergo imprisonment for one year R.I. 2. In short the prosecution case is that on 2.4.2008 M.K.Dwivedi, Sub-Inspector of Police posted at PS-Sihora got the information that appellant was having contraband Ganja in his possession in a bag and was standing near Pahadiya Petrol Pump to sell it, so on this he made entry in the Rojnamcha Sanha and prepared information memo for the SDO(P) and sent it for his information, and with the force he reached the spot and found the appellant with a bag in his possession, then he informed the appellant whether he wanted to give his search to him or he wanted that he may be searched in presence of some gazetted officer, appellant gave consent for his search by the officer for which a written memo was prepared. On search 6 kgs. contraband Ganja was found in the bag which was with the appellant so two samples of 25 grams each of the seized contraband were sealed separately. Accuused-appellant was arrested, case was registered under Crime No.305/08 for alleged offence under Section 8/20 of the Act vide Ex.P/21 at 11.30 hours by PS-Sihora. Contrabands were handed over to Head Constable Ramniroh Sharma (PW.1) who kept it in the custody and afterwards contraband was sent to FSL, Sagar for its chemical examination. From report (Ex.P/5) it was verified that contraband was Ganja Charge sheet was submitted and accused was charged on 23.05.08 under Section 8 and 20(b)(ii)(B) of the Act. Accused-appellant abjured the guilt and asked for a trial. 3. Prosecution has examined as many as seven witnesses in support of the case viz., Ramnihore Sharma(PW.1), Nandkishore (PW.2), Manta @ Santosh Kumar (PW.3), Anil Kumar Pandey (PW.4), Raju @ Munshi (PW.5),J.S.Bisen(PW.6) and Bramhadatt Dubey (PW.7). Mithilesh Dwivedi, Sub-Inspector died before his examination. Accused-appellant abjured the guilt and asked for a trial. 3. Prosecution has examined as many as seven witnesses in support of the case viz., Ramnihore Sharma(PW.1), Nandkishore (PW.2), Manta @ Santosh Kumar (PW.3), Anil Kumar Pandey (PW.4), Raju @ Munshi (PW.5),J.S.Bisen(PW.6) and Bramhadatt Dubey (PW.7). Mithilesh Dwivedi, Sub-Inspector died before his examination. Learned trial Judge after examination of these witnesses held the appellant guilty as aforesaid, against which this appeal has been preferred on the ground that findings of trial Court are perverse and it has not legally appreciated the evidence of prosecution, prosecution case was not proved as main witness Mithilesh Dwivedi was dead and secondary evidence was not admissible. 4. I have heard learned counsel for both the parties at length and perused the record. 5. Learned counsel for the appellant has raised only two legal objections against the finding of conviction, one is that compliance of Section 50 of the Act has not been made. There was no compliance of mandatory provisions of the Act relating to search. Learned PL for State, per contra, urged that since the search of bag was done and not the body so section 50 of the Act has no application in the instant case. 6. I am fully agree with the arguments advanced by learned PL for the State that section 50 of the Act applies only for the personal search of the body and not for search of luggage and bags. In the present case, the bag of appellant was searched and it is also pertinent to note that option for search was given in writing for which accused consented that search may be taken by the concerned officer. So no contravention of any provision of Section 50 of the Act is there. 7. Another contention which has been raised by learned counsel for appellant is that secondary evidence of Bramhadatt Dubey (PW.7), Constable has been taken and all documents have been got exhibited treating him as the Investigating Officer, his evidence is not admissible in the matter and the case of prosecution was not proved beyond reasonable doubt, still the learned trial Court came to the finding of guilt of appellant after accepting the evidence of Bramhadatt Dubey (PW.7). Learned PL for State has vehemently opposed this prayer on the ground that under Evidence Act secondary evidence is permissible and since Mithilesh Dwivedi was dead, he could not be called for examination, so Bramhadatt Dubey (PW.7) Constable who was present through out the raid, his evidence is admissible not only for the whole raid, but also for the documents exhibited by deceased Mithilesh Dwivedi. I do agree with the arguments advanced by learned PL for the State. 8. Lastly, in the alternative, learned counsel for the appellant submitted that as the appellant was in jail for 2 months and 18 days during trial, and from the date of passing of judgment on 30.10.09, he is continuously in jail, and has already suffered jail sentence of near about 2 years and there is no previous record of appellant and the quantity of Ganja is not very much, it is not nearer to commercial quantity, and it is the first offence of the appellant, so a lenient view may be taken and appellant's jail sentence may be reduced to the period already undergone by him. Counsel also submitted that the fine amount is also harsh. 9. On the contrary, learned PL for the State has supported the judgment delivered by the trial Court and contended that no interference is called for in this appeal. 10. As far as sentence of fine is concerned, fine of Rs.15,000/-is not too much. However, keeping in view the facts and circumstances of this case and submissions made by the parties, the interest of justice would be served if the jail sentence imposed on the appellant is reduced to the period already undergone by him which is near about 2 years, but no interference is called for as far as sentence of fine is concerned. 11. Consequently, the appeal is partly allowed. The order of conviction passed by the trial Court is hereby maintained. However, the jail sentence imposed on appellant Kallu @ Kodi Lal is reduced to the period already undergone by the appellant. However, sentence of fine of Rs.15,000/-as imposed by the trial Court is hereby maintained. If the appellant does not deposit the fine amount of Rs.15,000/-, then he will have to suffer R.I. for one year as ordered by the trial Court. As soon as fine amount is deposited, appellant be released forthwith, if not required in any other offence. 12. However, sentence of fine of Rs.15,000/-as imposed by the trial Court is hereby maintained. If the appellant does not deposit the fine amount of Rs.15,000/-, then he will have to suffer R.I. for one year as ordered by the trial Court. As soon as fine amount is deposited, appellant be released forthwith, if not required in any other offence. 12. Resultantly, the appeal is allowed in part to the aforesaid extent.