Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(MP) 816

IN THE HIGH COURT OF MADHYA PRADESH
SUJOY PAUL AND AMAR NATH (KESHARWANI), JJ.
ANJU alias PIYARI BAI and others – Appellant
vs.
STATE OF M. P. – Respondent
Cri. Appeal No. 307 of 2016
Decided on : 23-03-2023

Advocates:
Advocate Appeared:
For the Appellant : Vijay Shrivastava
For the Respondent: Arvind Singh

Compliance with search procedures, authorization for search, and modification of sentences based on the quantity of contraband recovered.

Headnote:
NDPS Act - Conviction and Sentencing - 8, 21(c), 21(b) of NDPS Act - Summary of Acts and Sections: The court discussed the authorization for search, compliance with section 50 of the NDPS Act, and the effect of non-examination of the Gazetted Officer. The judgment also addressed the sentencing of the appellants based on the quantity of contraband recovered.
Fact of the Case:

The appellants were convicted and sentenced under sections 8, 21(c), and 21(b) of the NDPS Act for possession of heroin. The prosecution's case was based on information received from an informer, search and recovery of the contraband, and forensic analysis.
Finding of the Court:

The court found that the search procedure was not violated, the authorization letter was technically erroneous but did not affect the case, and the non-examination of the Gazetted Officer did not prejudice the accused. The court also modified the sentences based on the quantity of contraband recovered.
Issues: The issues included the validity of the search authorization, compliance with section 50 of the NDPS Act, and the effect of non-examination of the Gazetted Officer.
Ratio Decidendi: The court held that the search procedure was not violated, the technical error in the authorization letter did not affect the case, and the non-examination of the Gazetted Officer did not prejudice the accused. The court also applied the principle of modifying sentences based on the quantity of contraband recovered.
Final Decision: The appeal was partly allowed, confirming the conviction and sentencing of the appellants while modifying the sentences based on the quantity of contraband recovered.

JUDGMENT :

SUJOY PAUL, J.

1. This appeal filed under section 374(2) of Criminal Procedure Code, 1973 (Cr.P.C.) challenges the judgment dated 22-12-2015 passed in Special Case No. 45/2011 by Special Judge (NDPS Act) Jabalpur whereby learned Court below convicted and sentenced the appellants as under:—

Appellant Nos. Quantity recovered Convicted under sections Sentenced to undergo 1. Anju @ Piyari Bai 500 gms 8 read with 21(c) of NDPS Act R.I. for 12 years with fine of Rs. 1,25,000/- and in default, to undergo R.I. for two years 2. Shivraj @ Hakku @ Rajkumar 200 gms 8 read with 21(b) of NDPS Act R.I. for 10 years with fine of Rs. 80,000/- and in default, to undergo R.I. for one year six months. 3. Ranjeet Jhariya 60 gms 8 read with 21(b) of NDPS Act R.I. for 10 years with fine of Rs. 80,000/- and in default, to undergo R.I. for one year six months.

2. The story of prosecution is that on 1-9-2011, the Inspector of Police Station, Gorakhpur Shri Raghvendra Singh Parmar (PW-4) received an information on telephone from Head Constable Mahesh Sharma that he gathered an information from the informer that appellants will reach their house at the night about 1:00 O’clock with Smack powder. If a raid is made, Smack can be recovered from them. Raghvendra Singh Parmar reduced the information (Mukhbir Suchna) in Rojnamcha, prepared the relevant panchnamas and sent an application to City Superintendent of Police (CSP) Office, Gorakhpur. In turn, he obtained search warrant and requisitioned two independent witnesses through the Constable in the said Police Station. The independent witnesses were apprised about the information received from Mukhbir. Thereafter, along with said independent witnesses namely Bablu @ Virendra and Bablu @ Sarfaraz, the staff along with relevant materials reached Durga Nagar, Gwarighat, Jabalpur. The vehicles were kept at a distance from the house of Anju @ Pyari Bai. The said house was knocked and when door was opened, in the first room, a woman, a boy and two men were found sitting and discussing something. Upon enquiry, they informed their names as Anju @ Pyari Bai, Ranjeet, Shivraj alias Hakku alias Rajkumar and Ganesh. All the four persons were apprised about the Mukhbir information. They were informed that the raiding team is equipped with necessary permission to undertake the search. All the four accused persons were further apprised that they have a legal right to get themselves searched in presence of a Gazetted Officer or a Magistrate. The aforesaid persons gave written consent of search in the presence of the Gazetted Officer. Thus, a Gazetted Officer i.e. CSP was called. During the search of members of raiding party, no unobjectionable substance etc. were found in the possession of members of raiding party and witnesses.

3. The Constable Ms. Beena searched Anju @ Pyari Bai and inside her petticoat, a cloth bag was found in which substance like Smack was there. Similarly, during search of Raj Kumar, a polythene bag containing similar substance was recovered. From Ganesh, a polythene bag containing similar material and wrapped in handkerchief (rumal) was recovered. From the full pant of Ranjeet, a polythene containing a powder like Smack was recovered. The substance was examined and found to be like Smack by the raiding party.

4. It is relevant to mention here that in connected CRA No. 917 of 2016, Ganesh vs. State of M. P., the sole appellant has undergone the punishment and therefore, counsel for the appellant made a statement that said appeal had rendered infructuous. It was accordingly disposed off.

5. In addition to the said Smack, some amount was also recovered from the appellants. The sample of Smack recovered from accused persons were taken and duly marked. The relevant panchnamas were prepared. The Dehati Nalishi was recorded. The seized material was handed over to Malkhana Moharir in the Police Station. In the Rojnamcha, the wapsi was recorded.

6. Further investigation was conducted by Shri Chandresh Kuma