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2003 (2) Crimes 262
Madhya Pradesh High Court
S.L. Kochar, J.
Kalusingh & Anr. —Appellants
versus
State of Madhya Pradesh —Respondent
Criminal Appeal No. 1442/1998
Decided on 18-2-2003
Counsel for the parties:
For the Appellants :Shri Virendra Sharma, Advocate.
For the Respondent:Shri Mayank Upadhyaya, Dy. Govt. Advocate.
Important Point
If there is substantial compliance of Section 50 NDPS Act, then benefit will not be given to accused and Section 50 should not be construed hyper- technically.
Headnote:(i) Narcotic Drugs and Psycho-tropic Substances Act, 1985 — Section 50 — Recovery of 2.300 kgs of opium from each appellant after having been apprehended by police party on prior secret information — Appeal against conviction — Secret information was recorded and its copy was sent to superior officer — Appellants were asked whether they wanted to be searched by Magistrate or Gazetted officer and both accused expressed willingness to give their search to police officer — Concerned officer offered his search to accused before taking search of accused — It was due compliance of Section 50 of the Act — Provision should not be construed hypertechnically. (Paras 7, 8, 16 and 19)
(ii) Narcotic Drugs and Psycho-tropic Substances Act, 1985 — Section 52A — Standing order issued under — Provision is meant for disposal of property — No relevance with case which is appeal against conviction. (Para 10)
(iii) Narcotic Drugs and Psycho-tropic Substances Act, 1985 — Sections 8/18 — Recovery of 2,300 kgs of opium from possession of accused appellant — Conviction — Appeal — Fact of sending sample to FSL on 19-2-1997 not mentioned in malkhana register — Fact was recorded in Daily Roznamcha and deposed by Malkhana Moharer and corroborated by statement of witness who took sample to FSL and report of FSL showing receipt of sample on 19-2-1997 — Conviction could not be faulted with on that point. (Para 13)
Result: Appeal dismissed.
Judgment
S.L. Kochar, J.— Being dissatis-fied with the judgment dated 10-10-1998 passed by the Special Judge (under N.D.P.S. Act), Mandsaur in Special Case No. 8/97, thereby con-victing the appellants for the offence under Section 8/18 of the Narcotics Drugs and Psychotropic Substances Act hereinafter referred to as the ‘Act) and sentencing them each to undergo R.I. for ten years and to pay a fine of Rs. 1,00,000/- each, in default of payment thereof to suffer further R.I. for two years, the appellants have preferred this appeal.
2. The case of the prosecution as putforth by the prosecution before the trial Court was that on 17-02-1997 at 3.20 a.m. The Station House Officer PW-5 Anil Singh received information through Mukhabeer that the accused/appellants were carrying opium for the purposes of sale from Suwasra. A Panchnama (Ex. P/1) was prepared to this effect and sent the same to the S.D.O.P. Sitamau. The S.H.O. then started for the spot alongwith the police party and surrounded the spot. The Police Party saw the appellants coming towards Ganesh Temple. The police-party stopped them and took search of their persons. They found 2.300 Kgs opium each in their possession in two white plastic packets. From each of the packets two samples of 30 grams opium was taken. The opium was seized vide Ex. P/2. The appellants were arrested vide arrest-memos Ex. P/5 and P/6. The SHO registered the FIR (Ex. P/10). The samples of the seized opium were sent for chemical examination to the Forensic Science Laboratory (FSL) Indore. According to the FSL report, the samples were of opium. The FSL report is Ex. P/12. During investigation, spot map was prepared and statements of witnesses were recorded.
After due investigation, charge-sheet was filed against the appellants. The appellants denied the guilty. The defence of accused Kalusingh was that he had sold a bullock to Shambhu Banjara for Rs. 3,000/- which amount was due to him. On this account, there was a dispute between him and Sham-bhu Banjara. They took the plea of false implication. In their defence, they have examined Amra (DW-1 and Gabba (DW-2). The learned Trial Court, after hea-ring both the parties found the appell-ants guilty of the offence with which they were charged and convicted them accordingly and sentenced as indicated above.
3. I have heard Shri Virendra Sharma, learned counsel for the appell-ants and Shri Mayank Upadhyaya, learned Dy. Adv. for the State and perused the entire record.
4. Learned counsel for the appellants has submitted the following points for assailing the judgment of conviction:
(i) There is no compliance of Section 50 of the Act.
(ii) No separate Panchnama was prepared by the police regar-ding their own search prior to the search of the appellants.
(iii) After seizure, where the sei-zed property was kept till filing of the charge-sheet. In this regard, no evidence is led by the prosecution.
(iv) The sample was not sent to the authorised laboratory for its chemical examination; and
(v) There was delay in sending the seized article to the Court.
Learned counsel has also placed reliance on the Standing Order No. 1 of 1989 issued by the Government of India Ministry of Finance (Department of Revenue) as per provision under Section 52-A of the Act.
5. On the other hand, learned Dy. Government Advocate Shri Mayank Upadhyaya appearing for the State supported the judgment of conviction passed by the trial Court and according to him, there was complete compliance of Section 50 of the Act and the property was also kept intact in the Malkhana for which, sufficient evidence, oral as well as documentary has been adduced by the prosecution. He further submitted that the Standing Order No. 1 of 1989 issued under the provisions of Section 52-A of the Act is not applicable, in the present case. Section 52-A is meant for disposal of seized Narcotic Drugs and Psychotropic Substances. These provi-sions as well as the Notification there-under issued by the Central Gov
