AJIJ Vs. STATE OF M P

JUDGEMENT

(1.) This appeal has been preferred being aggrieved by the judgment dated 20/11/1996 passed by the Court of Shri S.N. Sharma, 2nd Additional Sessions Judge, Neemuch in S.T. no. 138/1995, by which the appellant has been convicted under sections 8/21 of the NDPS Act and sentenced for rigorous imprisonment of ten years with fine of Rs. 1,00,000/-. According to prosecution story, on 03/11/1995, Radheshyam. ASI received an information from the informer that accused/appellant Ajim is selling packets of smack near his residence Banglow no. 32 and he can be trapped. Therefore, ASI Radheshyam informed it to SDO (P) and proceeded with the force and witnesses to the house of Ajim at banglow no. 32. The appellant seeing the police, ran away and with the aid of force, he was chased and caught. He was informed about the information of the informer and his due consent for search was obtained. On his search, in a red polythene bag, 39 packets of smack were recovered, which contained gray colour powder. It was collected in a single paper and after physical test, it was found to be smack prepared from opium. Its total weight was 4 grams. It was sealed on the spot and panchanama was prepared. Looking to the small quantity of the smack, its separate sample was not prepared. The appellant was arrested and after return to police station, FIR was lodged and after investigation, challan was filed in the Court. After trial, the appellant has been convicted and sentenced as mentioned herein above.

(2.) This appeal has been preferred by the appellant on the ground that the independent witnesses of the seizure memo Ex,-P/7 were hostile and they did not support the prosecution story and the quantity of the smack. Firoj Khan PW-9 who was the member of the raid party has deposed that 10 grams smack were seized, hence his statement was contradictory to the statement of Radheshyam PW-11, the seizing officer. The FIR was registered at crime no. 506/1995 by the investigating officer after return to the police station, but in the panchanama of proceedings Ex.-P/6 and in seizure memo Ex.-P/7, crime no. 506/1995 has been mentioned later on. This shows that these panchanamas were tampered later on. They are not reliable. The samples were not prepared on the spot, hence whole of the quantity of the seized smack was sent to FSL, but when at the time of the statement of the investigating officer Radheshyam PW-11, it was not the packet which returned from the FSL, but it was the packet which bears the signatures of the Investigating Officer, hence the seized packet was doubtful. The appellant was not apprised with his right about the search before Magistrate. There are serious contradictions and omissions in the evidence of the prosecution witnesses. Hence the appeal should be allowed.

(3.) It has been argued by the respondent's counsel that the appellant has been rightly convicted on the basis of the evidence produced by the prosecution before the Trial Court, hence this appeal being devoid of merits, be dismissed.