JUDGEMENT

This appeal under Section 374 of Cr.P.C. has been filed by the --2-- appellant/accused against judgment dated 19.02.2002 passed by Special Judge, NDPS Act, Mandsaur in Special Session Case No.28/99. By the impugned judgment, trial court has convicted the appellant / accused for offence under Section 8/20 of NDPS Act and sentenced him to undergo one year RI along with fine of Rs.1000/- in default of payment of fine, three months further R.I. 2. Prosecution story in brief is that on 16.01.1999, Vikram Bhadoria, station-in-charge, police station- Malhargarh, Mandsaur received information from informer that appellant-Devi Singh has grown plants of Gaanja in his land near his Dhaba. He prepared Mukhbir panchnama (Ex.P-10) and proceeded for spot with police personnel and sent information under Section 42 of NDPS Act to the SDO(P), Malhargarh and thereafter went to the spot and found there that a person was spreading fertilizer. He asked his name then he told his name Devi Singh. Police officer said to him that he wants to search him and after taking his his consent for his search and after preparing search Panchnama (Ex.P-4) seized plants of Gaanja from the agricultural land of the appellant. Police after completing the formalities filed charge-sheet before the competent court.

3. The trial court framed charges against the appellant/accused and the appellant denied the charges and claimed for trial. Trial court after recording the evidence and after hearing both the parties found appellant guilty for offence under Section 8/20 of NDPS Act and sentenced as stated above.

4. Being aggrieved by the impugned judgment, this appeal has been filed by the appellant stating that prosecution has failed to prove necessary ingredients of the offence as mentioned beyond reasonable --3-- doubts. There is no compliance of Sections 42, 43, 50, 51, 54 and 57 of NDPS Act. Appellant should have been specially informed in writing about his valuable right given under the provisions of NDPS Act as to whether he has accepted to get himself searched in front of gazetted officer or there is non-compliance of Section 50 of NDPS Act. He further submitted that PW-3 Ganpatlal and PW-4 Jaisingh, who are independent witnesses of Panchnama have not supported the version of prosecution.

They have been declared hostile and they are not reliable for the purpose of conviction. There are contradictions and omissions in the prosecution witnesses and trial court has erred in convicting the appellant without proper appreciation of oral and documentary evidence on record. Hence, it is prayed that impugned order be set aside and appellant be acquitted from all charges.

5. Per contra, learned counsel for the respondent/State supported the impugned judgment of the trial court and prays for dismissal of the instant appeal.

6. The question for determination in the present case is; whether the trial court has wrongly convicted the appellant? and the instant may appeal be allowed ? 7. Heard the learned counsel for the parties and perused the record of the case.

8. PW-15 Vikram Bhadoria, Sub-Inspector stated in his examination- in-chief that on 16.01.1999, he was posted as station in-charge, police station- Malhargarh, Mandsaur. He received information from the informer that appellant-Devi Singh has grown the plants of Gaanja in his land then he prepared Mukhbir panchnama and informed his senior officers and signed documents for calling independent witnesses.

--4-- Thereafter, he went to spot and prepared search panchnama in front of appellant and taking his consent for search of his land seized Gaanja plants from his land. He further stated that he had informed the appellant about his valuable right to get himself searched in front of gazetted officer. The accused had given his consent for search by him and then he prepared consent letter. He searched the accused in front of independent witnesses and o