MUNNA KHAN Vs. THE STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This Criminal Appeal against conviction under section 374 (2) of the Code of Criminal Procedure, 1973, filed on behalf of accused Munna Khan, is directed against the judgment dated 21.12.2009 passed in Special Case No.01/2007 by Special Judge (N.D.P.S. Act) Chhatarpur; whereby accused Munna Khan has been convicted of the offence punishable under Section 8 read with Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act , 1985 (hereinafter referred to in the judgment as "the Act") and has been sentenced to undergo rigorous imprisonment for a period of 5 years and to pay a fine in the sum of Rs.10,000/-. In default of payment of fine, he has been directed to undergo rigorous imprisonment for a further period of 6 months.

(2.) (a). As per the prosecution case, at about 04:00 p.m. on 28.01.2007, S.H.O. of P.S. Kotwali, Chhatarpur Arun Dubey, received an information from an informant to the effect that accused Munna Khan consumes and sells heroin/smack; therefore, SHO Arun Dubey called panch witnesses Mohammad Abid and Sanjay Mishra, who were going from in front of the police station and informed them regarding the information. He sent intimation of aforesaid information to C.S.P. Chhatarpur through constable Malkhan. Thereafter, he took the members of police force available in the police station namely constables Rahat Khan, Shiv Kumar and Kishore Kumar and panch witnesses Mohammad Abid and Sanjay Mishra along with the material required for investigation and proceeded to the spot as per information. When they reached the trifurcation in front of Dr. Sood's house, they spotted Munna Khan going towards Sagar. Arun Dubey called him and inquired regarding consumption and sale of heroin by him. He was asked whether he wanted to be searched by Arun Dubey or by any Gazetted officer or Magistrate; whereon, accused Munna Khan consented to his search by Arun Dubey. After that members of the police force allowed the accused to search them in front of panch witnesses. Subsequently, Arun Dubey duly searched the accused; whereon, a small box contained a polythene sack was found inside the underwear of the accused. There was a powder inside, which weighed 14 grams. Arun Dubey tested the powder on and smelt it and detected that the powder was heroin. Thereafter, the powder was duly seized and sealed. The accused was arrested. The spot map was prepared. Arun Dubey brought accused and the seized contraband to the police station. First information report was lodged and Crime No.62/2007 was registered. The contraband seized from the possession of the accused was duly kept in safe custody in the Malkhana. The entries in Malkhana Register were duly made. The matter was entrusted for further investigation to ASI U.S. Mishra, who recorded the statement of constables Rahat Khan, Shiv Kumar Mishra, Kamta Singh, Jairam Tiwari, Rajesh and also the statements of panch witnesses Mohammad Abid and Sanjay Mishra. The contraband was sent to FSL Sagar. As per the report of FSL Sagar, the powder contained 13.75% of diacetylmorphine (heroin/smack).

(3.) After the trial, the Court concluded that the prosecution has been able to prove beyond reasonable doubt that on the information received from an informant, regarding possession of heroin by the accused, a written intimation was sent to the City Superintendent of Police by SHO Arun Dubey. He has duly authorized under Section 42 of the Act. He proceeded to the spot and informed accused Munna Khan regarding his right to be searched either by SHO or by a Gazetted Officer or a Magistrate. The accused opted to be searched by SHO Arun Dubey.Thereafter, his person was duly searched and from his underwear, a small box contained 14 grams of heroin was duly seized in presence of the panch witnesses and other police personnel after observing the lagal formalities. It was duly deposited in the Malkhana, from where it was properly sent to FSL Sagar. As per the report of FSL Sagar, it contained 13.75% of diacetylmorphine. Consequently, the accused was convicted and sentenced as hereinabove stated.