Zafar Khan vs State of Police

Hon''ble Shri Justice Anil Kumar Sharma

Appellant has filed this appeal against judgment dated 04.11.1997 passed in Special Case No. 10/1997 by the learned Special Judge (NDPS Act), Indore (MP), whereby he has been convicted for the offence punishable u/s 8 read with Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act, in short) and sentenced to undergo rigorous imprisonment for ten years and fine of Rs.1,00,000/-has also been imposed upon him, with default stipulation. Brief facts of the case are that on information received on 15.03.1997 that accused is travelling from Khalghat to Manawar Road on a motorcycle without number plate and carrying opium, Station House Officer (SHO), Dharampuri, District Dhar searched appellant and seized 650 grams opium from the bag carried on the handle of motorcycle. After preparing necessary panchnama, a crime has been registered against the appellant and on filing of challan, learned trial Court, after trial of appellant for the offence punishable u/s 8/18 of the NDPS Act, convicted him for the same charges and sentenced him by the impugned judgment, as mentioned in paragraph No. 1 of this judgment.

Being aggrieved by the impugned judgment, appellant has filed this appeal on the ground that he has been falsely implicated in the case and learned trial Court has overlooked the non-compliance of mandatory provisions of the NDPS Act and further has not considered the fact that independent witnesses have not supported prosecution case.

Only question for determination in this appeal is whether learned trial Court is justified in convicting the appellant by the impugned judgment.

Learned counsel for the appellant has submitted that there is only evidence of Sub Inspector Sanjay Pathak (PW-6) and Assistant Sub Inspector B.M. Choudhary (PW-5), which has not been supported by evidence of independent panch witnesses Sureshchand (PW-1) and Chhaganlal (PW-2), who have turned hostile. Chhaganlal (PW-2) has admitted that before him no consent for search has been taken from the appellant.

Learned counsel for appellant has further drawn attention towards the statement of Sanjay Pathak (PW-6), who in his cross-examination admitted that he told the appellant that he is having information regarding contraband article in his possession and whether he is ready to give search to him or to Gazetted Officer or before Magistrate. Learned counsel for the appellant submitted that appellant has not been told that he has a statutory right for giving search before Gazetted Officer or Magistrate. Therefore, there is non-compliance of provisions of Section 50 of the NDPS Act, since appellant was searched first and thereafter his motorcycle was searched. Therefore, compliance of provisions of Section 50 of the NDPS Act is mandatory.

Learned counsel for appellant has further submitted that Sanjay Pathak (PW-6) himself has investigated the offence. He has admitted in paragraph No. 23 of his cross-examination that from preparation of panchnama of the informer of information till sending the seized article to the Forensic Science Laboratory, the whole investigation was done by him. Learned counsel for the appellant has further submitted that there is no evidence that seized articles were kept in the Malkhanaof the Police Station and there is no Malkhana Register or its copy has been produced before the trial Court. Therefore, there is no evidence that seized articles were kept in proper custody from seizure till it has been sent to Laboratory. Learned counsel for appellant has drawn attention towards the judgment of this Court in the matter of Ramgul @ Remulal v. State of MP reported in 2003 Criminal Law Reporter (MP) 26, in which it has been held that prosecution has failed to examine Constable, who took the seized articles for chemical examination and seal of sample was also not deposited in Malkhana along with seized articles, Investigating Officer has not complied with the mandatory provisions of Sections 52, 55, 57 of the NDPS Act, then the appellant is entitled for acquittal. There is no evidence that seized articles have been kept in Malkhana and there is no evidence of Constable that he took the seized articles from Malkhana to Laboratory in proper sealed condition. Therefore, looking to the non-compliance of the mandatory provisions of the Act, appellant cannot be convicted for offence punishable u/s 8/18 of the NDPS Act. Therefore, learned trial Court is not justified in convicting the appellant by the impugned judgment. Therefore, the appeal is allowed, setting aside the impugned judgment. Appellant is acquitted from the charges for the offence punishable u/s 8 read with Section 18 of the NDPS Act. Fine amount, if deposited by the appellant, be refunded to him. Bail bonds of the appellant are discharged.