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IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)
Virender Singh, J.
Raju - Appellants
Vs.
State of Madhya Pradesh - Respondent
Criminal Appeal No. 519 of 2017
Decided On : 11-05-2020
N.D.P.S. Act - Conviction under Sections 8(c)/18(b) - Summary of Acts and Sections: N.D.P.S. Act, 1985 - Sections 8(c), 18(b), 42, 52, 52A, 55, 57, 50 - The court discussed the compliance of Section 50, the right to be searched before a gazetted officer or a Magistrate, and the permissibility of the third option of search. The court emphasized the precise mandate of Section 50 and the requirement to inform the suspect of their right in unambiguous manner. The court referred to previous judgments and held that the search and recovery of contraband from the appellant was in accordance with the law. The court declined to interfere with the conviction of the appellant.
Fact of the Case:
The appellant was convicted under Sections 8(c)/18(b) of N.D.P.S. Act, 1985 for possessing 2 kg 750 gm of Opium. The prosecution's case was based on the recovery of opium from the appellant's possession during a police operation.
Finding of the Court:
The court found that the search and recovery of the contraband from the appellant's possession was in accordance with the law. The court declined to interfere with the conviction of the appellant.
Issues: The issues raised included non-compliance with mandatory provisions of Sections 42, 52, 52A, 55, and 57 of the NDPS Act, the permissibility of the third option of search, and the lack of evidence of conscious possession of the contraband by the appellant.
Ratio Decidendi: The court emphasized the precise mandate of Section 50 and the requirement to inform the suspect of their right in unambiguous manner. The court referred to previous judgments and held that the search and recovery of contraband from the appellant was in accordance with the law.
Final Decision: The court declined to interfere with the conviction of the appellant.
JUDGMENT :
Virender Singh, J.
1. The appellant has preferred this appeal against judgment and order dated 18.02.2017 delivered in Special Case No. 22/2010 by Special Judge, N.D.P.S. Act, Jawara, Ratlam whereby the appellant has been convicted under Sections 8(c)/18(b) of N.D.P.S. Act, 1985 and has been awarded ten years rigorous imprisonment with fine of Rs. 1,00,000/- in default further to undergo one year R.I., for having 2 kg 750 gm Opium in his illegal possession.
2. Prosecution case in brief is that on 24.05.2010 ASI R. C. Surawat (PW-19), who was posted at Police Station--Kalukheda received a secret information that one Raju @ Rajendra Kumar S/o. Kanhaiyalal, aged about 32 years, R/o. Asawati, Police Station--Ringnod is going to Rajasthan to deliver illegal opium tied with tummy by his black colour Yamaha motorcycle bearing registration No. MP-04-JD-7489. He will pass through Kalaliya fanta Chiklana Mawata and can be nabbed by prompt action. The information was entered in Roznamcha Sanha. Mukhbir Suchana Panchnama was prepared. Independent witnesses were called. Senior Officer was intimated. A police team comprising ASI R. C. Surawat, Constables Antarsingh and Mahendrasingh, independent panch witnesses Jagdish and Rameshwar was constituted and were proceeded by their own motorcycles towards the place pointed out by the informer alongwith necessary paraphernalia. On the spot, they hid themselves and their motorcycles behind the shrubs and waited for the suspect. After about an hour, they noticed the suspect coming on black colour motorcycle from village Lasudiyanathi Nai Abadi end. When he came close, the police pounced upon and stopped him. On interrogation, he revealed his name as Raju @ Rajendrakumar S/o. Kanhaiyalal. ASI R.C. Surawat (PW-19) informed him about the information received and also about his right under Section 50 of N.D.P.S. Act. He consented in writing for his search by ASI Surawat. ASI Surawat searched him and his motorcycle after giving his own and his team members search. Nothing objectionable was recovered from the person but a strip of white towel wrapped around the belly having a poly bag with a mark "Jai Mata Di India Collection" in orange color contains two polly pouches having condensed substance alongwith Rs. 20/- cash and a black Nokia mobile from right pocket of trouser having idea SIM were recovered from his possession. On testing, the substance was found opium. Its weight was found 02 kg 750 gm. Two samples of 30 gm each were taken out and contraband as well as samples were sealed on the spot. The appellant alongwith the Contraband and motorcycle was brought to the police station. Crime No. 55/2010 was registered. Samples were sent for FSL, who confirmed identity of the substance recovered that it was opium. Following the due process and after completing the other usual investigation, the police filed the charge-sheet.
3. During investigation, the police have prepared following documents:-
4. On inquiry, the appellant revealed that he had procured the said contraband from co-accused Mangu Patel R/o. Kuchdod. On the basis of this disclosure Mangu @ Mangilal was arrested and impleaded in the array of the accused, but nothing except one Nokia mobile was recovered from his possession (Ex. P/31 & 32).
5. Both the accused persons were charged under Sections 8(c) and 18(B)/29 of N.D.P.S. Act, 1985. After the trial, the trial Court acquitted co-accused Mangu @ Mangilal and has convicted and sentenced the present appellant as stated in para 1 above.
6. The appellant has preferred this appeal on the grounds that the judgment and order of the learned Trial Court is contrary to the law and the facts on record. The prosecution has failed to comply mandatory provision of Sections 42, 52, 52A, 55, and 57 of the NDPS Act and also the seizure of the contraband from possession of the appellant. The words "Constitutional Right" and "Nearest" are missing in the information memo Ex. P/6 and the Seizing Officer proacti
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