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2009(2) JLJ 148
R.S. Garg, J.
Laxminarayan v. State of M.P.
Criminal Appeal Nos. 584 of 2007 and 339 of 2008 (Indore) : against
the judgment of Special Judge, NDPS Act, Neemuch, passed in
Special Sessions Trial No.3 of 2005; Decided on 2.2.2009.
It would be trite to say that when the personal liberty of a man is at stake then the mandatory provisions of law take sacrosanct nature and their observation become mandatory. If at any time it is held that the provisions are mandatory in nature then the Court would find no hesitation in acquitting the accused if it finds that the provisions of mandatory nature have been violated.
From the above referred judgment of the Supreme Court and the language of section 52A of the Act, it clearly appears that the prosecution agency is entitled to destruct/destroy the particular contraband bulk quantity so seized from the accused but the fact is required to be proved. If it is not proved in the Court that the bulk quantity was destroyed then the prosecution would be obliged to produce the bulk quantity or in case the prosecution successfully proves that the seized bulk quantity was destroyed then the prosecution would be obliged to produce the additional samples drawn from the bulk quantity before its destruction. 2004(2) Vidhi Bhasvar 30 (SC) and 2008 IV AD (Criminal) (SC) 337 followed. [Paras 27 & 28
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¼iSjk 27 ,ao 28½
1. This judgment shall dispose of Criminal Appeal No.584/2007 (Laxminarayan v. State of Madhya Pradesh) and Criminal Appeal No.339/ 2008 (Umashankar v. State of Madhya Pradesh).
2. Each of the appellant, being aggrieved by the judgment dated 18.4.2007 passed by the Special Judge, NDPS Act, Neemuch in Special Sessions Trial No.3/2005 (State of M.P. v. Laxminarayan and another) convicting appellant Umashankar under section 8/l8B of Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing him to undergo rigorous imprisonment for ten years and pay a fine of Rs.1,00,000/-, in default of payment of fine to undergo further rigorous imprisonment for one year and convicting appellant Laxminarayan under section 8/18B-29 of the NDPS Act and sentencing him to undergo rigorous imprisonment for ten years and pay a fine of Rs.1,00,000/-, in default of payment of fine to undergo further rigorous imprisonment for one year, have filed the separate appeals.
3. The prosecution case in short is that on 2.9.2004 Assistant Sub-Inspector (Police) Shri RS. Chauhan of Police Chowki Nayagaon received an information that appellant Laxminarayan and Umashankar were driving unnumbered red colour Hero Honda motor-cycle and were carrying contraband opium. After receiving the information, Shri R.S. Chauhan registered the same in the daily diary of the police station; prepared the Panchnama of the information in presence of Sanjay and Gopal Sharma and immediately thereafter, sent an information under section 42 of the Act to SDOP Jawad. With the necessary force, witnesses and other relevant material necessary for investigation, he went to the spot; stopped the motorcycle, accosted the driver and the pillion rider, Laxminarayan s/o Prabhulal Dhakad and Umashankar s/o Badrilal Dhakad respectively and informed them of his personal information and also apprised them that in accordance with law, such accused persons were entitled to be searched before any Gazetted Officer or a Magistgrate.
4. According to the prosecution case, the accused persons accepted the offer and permitted Shri R.S. Chauhan to take their search. On search, in a sling bag hanging on the shoulder of pillion rider Umashankar, three kilograms opium were recovered; two samples of 30 grams each were drawn and were immediately sealed. Necessary slips were affixed and signatures of the witnesses were also obtained on the Panch nama, etc. The samples were marked as Articles A-1 & A-2 and on return, Crime No.49/04 was registered at Police Station Jawad. Article I-A was sent to the Forensic Science Laboratory, Indore, which certified the sample to be of contraband opium.
5. After collecting the material evidence and examining the witnesses but before filing the Chalan, Shri RS. Chauhan made some application to the Executive Magistrate-cum-Tahsildar, Jawad under section 52A of the Act. The said application is not available on the record but the proceedings recorded by the said Executive Magistrate-cum- Tahsildar are available on the record.
6. From the said proceedings, it appears that the said Executive Magistrate-cum- Tahsildar found that the weight of contraband opium was 2.940 kilograms. The sample was opened in presence of the Executive Magistrate-cum-Tahsildar and two samples of 30 grams each were drawn. The samples were marked as A-3 and A-4; those were properly sealed and the contraband article 2.880 kilograms was again sealed. The samples drawn at A-3 and A-4 and the contraband opium were returned back to Shri R.S. Chauhan, Assistant Sub-Inspector.
7. After completing the process and procedure, the prosecution agency filed the charge-sheet against the accused persons. As the accused persons denied commission of the offence, they were subjected to trial.
8. The learned trial Court, after recording the evidence and hearing the parties, recorded a finding that the prosecution was successful in proving observance of section 42, section 50, section 52 and section 57 of the
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