STATE OF M P Vs. RAMCHANDRA JAISWAL

JUDGEMENT

(1.) APPELLANT -State has filed this appeal under section 378 of the CrPC, against the judgment and order dated 9.3.1999, in special case No. 22/98, passed by Shri N.K. Satsangi, Special Judge NDPS Act Ujjain, acquitting accused Ramchandra Jaiswal from the offence under section 8 read with section 15 of the Narcotic Drugs and Psychotropic Substances Act (for short 'NDPS Act') from the allegation of possessing the poppy hask weighing 5.850 Kgs. Prosecution case is that on 16.7.1998 at about 5.45 p.m. when SHO Rajesh Sharma (PW 4) was patrolling with constable Pradeep, Shreeram and Kamalsingh, then near the 'Dargah' on Tarana-Ujjain road the accused, who was going on a cycle, was on suspicion intercepted and from a raxine bag in his cycle the poppy hask 5.850 Kgs. was recovered and two samples of 250-250 Gms. were taken and sealed therein. That the accused was apprised the ground of his arrest and after arrest the accused along with the 'Muddemal' was taken by SHO Rajesh Sharma (PW 4) to the police station.

(2.) THAT the seized item along with the sample packet were handed over by constable Kishanlal (PW 1) to head constable 'Malkhana' Kanhaiyalal (PW 3) to keep the property in the 'Malkhana' and he made the entry in the 'Malkhana' register (Ex. P-3). The case was registered against the accused and the investigation was handed over to SHO Satish Agnihotri (PW 5) of P.S. Makdon, who has recorded the statements of the witnesses and the sample packet was sent by him for examination through constable Kishanlal (PW 1) to FSL Indore. That in the report of FSL Indore (Ex. P-28) dated 31.7.1998, it was opined that the content of the sample packets was opium poppy capsule known as 'DODA'. Investigating Officer Satish Agnihotri (PW 5) after usual investigation has filed the charge sheet in the Court of Special Judge NDPS Act Ujjain on 11.9.1998 against the accused under section 8/15 of the NDPS Act.

(3.) THE prosecution to bring home the guilt against the accused has examined constable Kishanlal (PW 1), Ratanlal (PW 2), head constable Kanhaiyalal (PW 3), SHO Rajesh Sharma (PW 4) and Investigating Officer Satish Agnihotri (PW 5). The learned trial Court has held that the Seizing Officer Rajesh Sharma (PW 4) has not conducted the seizure in presence of the 'Panch' witnesses, who were available at the time of seizure and that the prosecution has not examined in Court the other constables, who were accompanying Rajesh Sharma (PW 4). That in view of the contradictions in the statement of Rajesh Sharma (PW 4) his uncorroborated testimony is unsafe to hold that the accused was found in possession of the contraband. The learned trial Court has also held that the sample prepared from the item at the time of seizure was not the same, which was sent for chemical examination. The learned trial Court has acquitted the accused.