BANO BI Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS appeal has been filed under Section 374 of the Cr.P.C. by accused appellant Bano Bi being aggrieved by the judgment dated 9/2/2007 passed by the Special Judge, N.D.P.S. Act Ratlam in Special Case No. 36/2002 convicting the accused for offence under Sections 21(C) of the N.D.P.S. Act and sentencing him to undergo 10 years R.I. with fine of Rs. 1,00,000/ -. In case of default to pay the fine he was to undergo an additional sentence of one year's S.I. Brief facts of the prosecution case are that on the date of incident i.e. on 2.10.2002 the Thana Prbhari Shri B.S. Malviya, police station Industrial Area, Jaora, Ratlam received an information that an outside lady smuggler, who is aged about 50 years, wearing blue and cream coloured salwarkurta received heroine from another smuggler resident of Mandsaur and she was travelling in an auto rickshaw from Hussain Tekari to Jaora bus stand and she would leave Jaora for Ratlam and thereafter she would leave Ratlam for Mumbai. She was carrying a green and white coloured basket, which contains smack and she would leave at around 5.30 O'clock from Hussain Tekari to Jaora bus stand. The information was noted in the rojnamcha and thereafter Shri Malviya summoned panch witnesses Jagdish and Bherulal. They were informed about the information received, and prepared the memo under Section 42 of the NDPS Act and sent the same to S.D.O.P, Jaora. Thereafter the raiding party proceeded towards the spot along with the investigating materials. On reaching spot, they laid a siege and after around 10 -15 minutes an auto rickshaw bearing registration No. M.P. 14/T -0522 came from Hussain Tekari, they found the accused in the auto rickshaw as per the information. Upon enquiry she stated that her name is Bano Bi w/o Munshi Khan resident of U.P. and permanent address was Janata Colony, Mandsaur. She was informed about the information received and informed of her rights u/s 50 of the NDPS Act to be examined personally either through a gazetted officer or through Magistrate or if she wanted to be examined through a lady Sub Inspector Munni Parihar. On her consent, she was examined by lady Sub Inspector Munni Parihar. Upon examining the bag, it was found to contain clothes and also four polythene bags and it contained grey coloured powder and also recovered a sum of Rs. 1000/ -from her possession. Upon smelling and tasting the powder, it was found to be heroine and on weighing the same, it was found to be 400 gms of heroine in three bags and 300 gms. in another bag. On completing the procedure by taking two samples of 5 -5 gms. each of the same it was duly sealed and sent to the Forensic Science Laboratory for chemical examination. The seizure memo was also prepared under Section 57 of the NDPS Act and sent the report to the SDOP, Jaora. Thereafter the accused was arrested and charged for offence under Sections 8/21(C) of the NDPS Act and duly committed to her trial.

(2.) ACCUSED /appellant abjured her guilt and stated that she has been falsely implicated in the matter. On the basis of the evidence on record, the Trial Court convicted and sentenced the appellant as already stated herein above. Being aggrieved, the appellant has filed the present appeal.

(3.) COUNSEL for the respondent/State, on the other hand, has fully supported the judgment of the lower Court. He has however, not opposed the alternative prayer of the Counsel for the appellant for reduction of custodial sentence in default of payment of fine on the basis of the directions given by the Apex Court in the case of Shantilal (supra).