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S.A. Naqvi, J.
Bhadar v. State of M.P.
Criminal Appeal No. 558 of 1994 (J); Decided on 3.12.2008.*
(ii) Narcotic Drugs and Psychotropic Substances Act, 1985—Section 42—Recovery of 590 grams of charas from possession of accused-appellant —Appellant was arrested on a prior secret information—Provisions of Section 42(1)and 42(2) of the Act were mandatory—Entry in rojnamcha was not in compliance of Section 42(1) of the Act because reasons that offence been committed were not mentioned—No separate panchanama for compliance of Section 42(1) and 42(2) was prepared—Non-compliance of mandatory provisions entitled appellant for acquittal—No evidence that seized article and sample was kept in safe custody as malkhana moharir was not examined—Malkhana register was neither produced nor proved—Conviction was liable to be set aside. (Para 11 to 13)
Result: Appeal allowed.
(i) Narcotic Drugs and Psychotropic Substances Act,1985—Section 50—Recovery of 590 grams of charas from possession of accused—Polythene bag was in hand of appellant and from that bag three polythene packets containing contraband were seized—Section 50 of the Act would not be attracted. (Para 10)
(ii) Narcotic Drugs and Psychotropic Substances Act, 1985—Section 42—Recovery of 590 grams of charas from possession of accused-appellant —Appellant was arrested on a prior secret information—Provisions of Section 42(1)and 42(2) of the Act were mandatory—Entry in rojnamcha was not in compliance of Section 42(1) of the Act because reasons that offence been committed were not mentioned—No separate panchanama for compliance of Section 42(1) and 42(2) was prepared—Non-compliance of mandatory provisions entitled appellant for acquittal—No evidence that seized article and sample was kept in safe custody as malkhana moharir was not examined—Malkhana register was neither produced nor proved—Conviction was liable to be set aside. (Para 11 to 13)
Result: Appeal allowed.
1. The appellant, Bhadar has preferred the appeal being aggrieved by the impugned judgment dated 16.2.1994 passed by First Additional Sessions Judge, Bhopal in Sessions Trial No. 111/92 whereby the appellant, Bhadar has been convicted under section 8-C read with section 20 (b) (ii) of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act') and sentenced to undergo 10 years of rigorous imprisonment and fined Rs. 1 lac, in default, two years and six months simple imprisonment.
2. Case of the prosecution in short is that on 4.8.1991 at about 7:30 pm., S.J. Zafrin (PW 6) received information from the informer, that near Moti Masjid, Bhopal, infront of Bazer Enterprises, the appellant is in possession of contraband article in polythene bag. SJ. Zafrin apprehended the appellant Bhadar alongwith witnesses and took search of him. Charas weighing 590 gms was found in three polythene packets from the possession of the appellant, Bhadar. The seized charas was being weighed through Ramdayal (PW 5), sample weighing 10 gms was taken from charas. Sample and remaining 580 gms charas was sealed separately. They were seized as per seizure memo Ex. P-2. Panchnama Exhibit P-3 was prepared. S.J. Zafrin along with seized articles and the accusedappellant came back to police station and made entry in Rojnamchasanha Exhibit P-7. Case was registered as Exhibit P-8C. Sample of seized contraband article was sent to chemical examiner, Government Opium & Alkaloid Works, Neemuch. As per the chemical examiner report Exhibit P-IO, the seized article was found to be charas. After completion of investigation, the appellant was charge-sheeted. Case was committed to the Court of Sessions for trial.
3. Learned trial Court framed charge under section 8-C read with section 20 (b) (ii) of NDPS Act. The appellant, Bhadar abjured the guilt and pleaded innocence and false implication. His defence is that he was taken by police from his house.
4. Prosecution examined six witnesses, no witness has been examined by the defence. After hearing learned counsel for both the parties, perusing evidence and material on record, learned trial Court convicted the appellant, Bhadar under section 8-C read with section 20 (b) (ii) of NDPS Act and sentenced him as hereinabove mentioned. Being aggrieved by the impugned judgment, the appellant has preferred the appeal.
5. I have heard learned counsel for both the parties, perused impugned judgment, evidence and material on record.
6. Learned counsel for the appellant submitted that provisions of section 42, 43, 47 and 50 of NDPS Act have not been complied with, investigation is not fair. On 4.8.1991, it is alleged that contraband articles was seized from two persons and there is no evidence on record that, same sample was sent for analysis, which was seized from the appellant, Bhadar. There are discrepancies in the statement of prosecution witnesses and learned trial Court committed error in convicting and sentencing the appellant as hereinabove mentioned. Contrary to that, learned Public Prosecutor supported the impugned judgment and contended that learned trial Court did not err in convicting and sentencing the appellant.
7. Mohd. Yakub (PW 3) turned hostile. He is witness of seizure memo of Exhibit P-2, Panchnama Exhibit P-3 and receipt Exhibit P-4, but he is not supporting the factum of seizure of contraband article from the appellant, Bhadar and taking sample weighing 10 gms from the seized article. He is deposing against his previous statement Exhibit P-6.
Statement of Mohd. Yakub is not reliable.
8. S.J. Zafrin (PW 6) deposed that on 4.8.1991 at about 6:50 p.m., he received information from the informer that the appellant, Bhadar Ali is standing near Moti Masjid to sell Charas. This information was entered in Rojnamchasanha No. 302 Exhibit P-l. Suraj Singh Chouksey (PW 1) entered information received by S.l. Zafrin in rojnamchasanha Exhibit P-I. No question has been asked in cross-examination
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