IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SMT. JUSTICE ANURADHA SHUKLA ON THE 11 OF JULY, 2023 CRIMINAL APPEAL No. 6637 of 2022 BETWEEN:-

BADKU @ RAM SONKER S/O JAGDEV SONKER, AGED ABOUT 28 YEARS, OCCUPATION: PRIVATE WORK, R/O SETHI NAGAR NEAR WATER TANK, POLICE STATION GORAKHPUR, DISTRICT JABALPUR (M.P.)

.....APPELLANT (BY SHRI V. K. RISHI - ADVOCATE)

AND THE STATE OF M.P., THROUGH POLICE STATION GORAKHPUR, DISTRICT JABALPUR (M.P.)

.....RESPONDENT (BY MS. SHIKHA SINGH BAGHEL – PANEL LAWYER)

Reserved on : 01-07-2023 Pronounced on : 11-07-2022 ……………………………………………………………………………..

This appeal coming on for admission this day, the court passed the following:

J U D G M E N T

This criminal appeal has been preferred against the judgment of conviction and sentence passed on 30.07.2022 by Special Judge, N.D.P.S. Act, Jabalpur in S.C. NDPS NO.07/2022, whereby the appellant has been convicted under Section 8/21(B) of Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter to be referred as ‘NDPS Act’) for illegal possession of 16 gm. of smack and sentenced to undergo R.I. for 2 years with fine amount of Rs.10,000/- and in default of payment of fine, further R.I. for four months.

2. The prosecution story, in short, is that an information was received on 30.11.2021 by S.I. Madan Singh Maravi of police station Gorakhpur that a person was standing at the named place with smack in his possession and he was looking to sell it. A panchnama to that effect was prepared and two independent witnesses as well as electronic weighing machine were summoned. Independent witnesses were informed of the information received and correctness of weighing balance was verified. The report about received information was sent to CSP Gorakhpur. Later, Shri Maravi reached on the spot along with police staff and independent witnesses, where the appellant was found standing. He was made aware of the information received and was given the choice to have his person searched before the Magistrate/Gazetted Officer, but appellant consented for the search by S.I. Shri Maravi. Police party and witnesses gave their search to the appellant, no objectionable item was recovered from their possession, thereafter, the appellant was searched and a small packet was found in the right pocket of his lower containing a substance like smack and Rs.78,100/- were recovered from the left pocket of his lower. On analysis, the recovered item was found to be smack. It was weighed and two samples were drawn. Both the samples as well as the remaining quantity were seized and sealed separately. Appellant was arrested on the spot.

3. On return to the police station, Shri Maravi handed over the seized items to Malkhana Moharir and registered an FIR bearing crime no.763/2021. The investigation was conducted whereunder spot map was prepared, the police statements of witnesses were recorded, seized sample was sent for FSL examination under which it was reported that it was diacetylmorphine (heroin). The charge-sheet was filed before the trial Court. After conclusion of trial, appellant was sentenced and convicted under the impugned judgment.

4. The grounds raised before the appellate Court are that there was no material evidence to hold the appellant convicted, and it was a case to be decided under Section 232 of Cr.P.C. Learned trial Court failed to appreciate the important aspect of NDPS Act. The investigation was not fair and judicious. Shri Maravi (PW-5) being the complainant and FIR writer could not have investigated the crime himself. This has caused serious prejudice to the appellant. Under Section 50 (1) of NDPS Act, the appellant had a right to be searched in presence of Magistrate or a Gazetted officer, but this mandatory provision was violated. Therefore, conviction was bad in law. Learned trial Court has failed to consider that only interested and pocket witnesses were produced by the prosecution and they too failed to support the prosecution case.

5. It is claimed that the