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Madhya Pradesh High Court · body

2013 DIGILAW 1188 (MP)

Jitendra Pawar v. State of M. P.

2013-10-01

G.S.SOLANKI

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JUDGMENT G.S. Solanki, J. 1. This criminal appeal has been preferred by the appellant u/s. 374(2) of the Code of Criminal Procedure being aggrieved by the judgment dated 21/07/97 passed by Special Judge (N.D.P.S. Act) Jabalpur in special case no. 21/97 whereby he has been convicted u/s. 8 read with section 20(1) of N.D.P.S. Act and sentenced to undergo RI for 3 years & fine of Rs. 2000/- in default to suffer further SI for 3 months. The facts, in short, giving rise to this appeal are that on 19/02/97 Shivnaresh (PW-2), Assistant Sub Inspector Police Station Kirnapur received a secret information that appellant is having in possession of contraband. Shivnaresh registered the aforesaid information in Roznamcha sanha and informed his superior officers in this regard. Thereafter, he intercepted the appellant at the place (Bhandara). He took his consent for search to be made by him and prepared his consent panchnama (Exhibit P-2). On search of appellant about 260 gms of ganja found in his pocket. Seizure panchnama was prepared before the panch witnesses. Appellant has been arrested. Seized contraband has been sent for chemical examination to FSL, Sagar. As per report of Assistant Chemical Examiner, contraband was ganja. After due investigation, appellant has been charge sheeted before the Special Judge (N.D.P.S. Act), Jabalpur. Special Judge framed the charge u/s. 8 read with section 20(1) of N.D.P.S. Act. 2. Appellant abjured the guilt and pleaded false implication. After appreciation of evidence on record trial Court recorded the conviction and sentence as mentioned hereinabove. Hence, this appeal. 3. Learned counsel for the appellant submits that there is non-compliance of section 50 of the N.D.P.S. Act in this matter. He took me to the statement of Shivnaresh (PW-2) Investigating Officer who seized the contraband from the appellant wherein he stated that he reached to the spot and taken the consent of appellant for search and prepared the consent panchnama. It is submitted that trial Court failed to appreciate the aforesaid aspect of the case therefore, prays for setting aside the impugned judgment. 4. Learned Panel Lawyer for the State has supported the conviction and sentence recorded by the Court below. 5. I have perused the impugned judgment alongwith the record of the trial Court. As usual panch witnesses have not supported the prosecution case. 4. Learned Panel Lawyer for the State has supported the conviction and sentence recorded by the Court below. 5. I have perused the impugned judgment alongwith the record of the trial Court. As usual panch witnesses have not supported the prosecution case. Further Shivnaresh (PW-2) ASI who received the secret information and reached to the spot has stated that he took the consent of appellant for search and prepared the seizure panchnama. He has not stated anything in regard to the fact that he apprised the appellant for his valuable rights regarding search before the Gazetted Officer or Magistrate. It was held by Apex Court in the case of State of Punjab Vs. Balbir Singh, AIR 1994 SC 1872 that as per section 50 of the N.D.P.S. Act obligation of an authorized officer to inform the person concerned of his right is a valuable right given to the persons to be searched in the presence of a Gazetted Officer or a Magistrate if he so desires, since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to accused. In the present case, there is total non-compliance of mandatory provisions of section 50 of the N.D.P.S. Act. 6. Trial Court has not considered the aforesaid aspect of the case and committed the illegality in recording the conviction against the appellant u/s. 8 read with section 20(1) of N.D.P.S. Act and same is liable to be set aside. 7. Resultantly, appeal is allowed. The conviction and sentence recorded by the trial Court in Special Case No. 21/97 is hereby set aside and appellant is acquitted to the offence u/s. 8 read with section 20(1) of N.D.P.S. Act. Appellant is on bail. His bail bonds and surety bonds stand discharged. Record of the trial Court be sent back immediately alongwith copy of this order for information and necessary compliance.