Sakhawat Khan Vs. State of Madhya Pradesh
EmailAppeal: Criminal Appeal No. 733 of 1998
Petitioner: Sakhawat Khan
Respondent: State of Madhya Pradesh
Apeal: Criminal Appeal No. 733 of 1998
Judges: M.B. SHAH & K.G. BALAKRISHNAN, JJ.
Date of Judgment: Jan 24, 2001
Head Note:
CRIMINAL LAW
NDPS Act, 1985
Sections 21, 8 – Conviction – Recovered smack kept in polythene which in turn, kept in cloth bag – Though sealed, someone had opened cloth bag for putting crime number – However, “mudammal” article found intact in sealed polythene. Held that article was not tampered with by mentioning crime number on slip attached to polythene bags. (Paras 5, 6)
Section 50 – Compliance – Notice given by investigating officer – Accused having consented to search by him. Held, there was proper compliance. (Para 4)
JUDGEMENT:
ORDER
1. This appeal is filed against the judgment and order dated 13.8.1997 passed by the High Court of Madhya Pradesh Bench at Indore in Criminal Appeal No. 212 of 1996 whereby the High Court has confirmed the judgment and order dated 30.11.1995 passed by the Addl. Sessions Judge, Jaora, in Sessions Trial No. 251/1991 convicting the appellant under Section 8 read with Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act’) and sentenced him to undergo rigorous imprison-ment for 10 years and a fine of Rs.1,00,000/- and in default in the payment of fine, further rigorous imprisonment of 3 years.
2. It is the prosecution case that on receipt of the information that two persons were standing near Circuit House Junction on Mhow – Neemuch road which was recorded in Rojnamcha (Daily Diary) Ex.P.7, Sub Inspector, Raj Kumar Singh (PW-3) along with Panchas and police force went there and searched two persons who were standing there. One of them was the appellant and another Shakil Ahmed. Shakil Ahmed absconded and, therefore, his trial was separated.
3. Further it is also the prosecution case that from the person of the appellant 500 gm. of smack was recovered from a polythene bag. That polythene bag was opened and sample of 10 gms. was taken. Subsequently, polythene bag was sealed and signatures of the Panchas, accused and investigating officer were placed on the slip attached to the polythene bag. After completing the neces-sary investigation, accused were chargesheeted and after trial A-1 was convicted as stated above.
4. At the time of hearing of this appeal learned Counsel for the appellant submitted that investigating officer has not followed the mandatory procedure prescribed under Section 50 of the Act. In our view, this submission is without any substance because investigating officer in his deposition has stated that he issued notice to the accused as to whether they would give their search to him or to any gazetted officer. Both the accused gave their consent with regard to the search by the investigating officer.
5. Learned Counsel thereafter submitted that in the present case mudammal article was not properly kept at the police station and in any case mentioning of a crime number on the slip attached to the polythene bag clearly indicates that some one has opened the cloth bag wherein the polythene bag was kept because crime number could not be mentioned at the spot as no FIR was registered at that time.
6. In our view, this submission is also without any substance because admittedly the polythene bag was properly sealed and slip attached to it was having signature of the two Panchas, accused and that of the investigating officer. That was produced before the Court in a container of cloth bag. It is true that investigating officer has further stated that container was also sealed by him at the time of seizure of the mudammal article. In our view as the polythene bag containing mudammal article was found intact and was properly sealed and having signatures of the accused as well as witnesses, it cannot be said that mudammal article was tampered with in any manner by mentioning the crime number on the slip attached to the polythene bag.
7. In this view of the matter, we hold that there is no substance in this appeal and the same is, therefore, dismissed.
1. This appeal is filed against the judgment and order dated 13.8.1997 passed by the High Court of Madhya Pradesh Bench at Indore in Criminal Appeal No. 212 of 1996 whereby the High Court has confirmed the judgment and order dated 30.11.1995 passed by the Addl. Sessions Judge, Jaora, in Sessions Trial No. 251/1991 convicting the appellant under Section 8 read with Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act’) and sentenced him to undergo rigorous imprison-ment for 10 years and a fine of Rs.1,00,000/- and in default in the payment of fine, further rigorous imprisonment of 3 years.
2. It is the prosecution case that on receipt of the information that two persons were standing near Circuit House Junction on Mhow – Neemuch road which was recorded in Rojnamcha (Daily Diary) Ex.P.7, Sub Inspector, Raj Kumar Singh (PW-3) along with Panchas and police force went there and searched two persons who were standing there. One of them was the appellant and another Shakil Ahmed. Shakil Ahmed absconded and, therefore, his trial was separated.
3. Further it is also the prosecution case that from the person of the appellant 500 gm. of smack was recovered from a polythene bag. That polythene bag was opened and sample of 10 gms. was taken. Subsequently, polythene bag was sealed and signatures of the Panchas, accused and investigating officer were placed on the slip attached to the polythene bag. After completing the neces-sary investigation, accused were chargesheeted and after trial A-1 was convicted as stated above.
4. At the time of hearing of this appeal learned Counsel for the appellant submitted that investigating officer has not followed the mandatory procedure prescribed under Section 50 of the Act. In our view, this submission is without any substance because investigating officer in his deposition has stated that he issued notice to the accused as to whether they would give their search to him or to any gazetted officer. Both the accused gave their consent with regard to the search by the investigating officer.
5. Learned Counsel thereafter submitted that in the present case mudammal article was not properly kept at the police station and in any case mentioning of a crime number on the slip attached to the polythene bag clearly indicates that some one has opened the cloth bag wherein the polythene bag was kept because crime number could not be mentioned at the spot as no FIR was registered at that time.
6. In our view, this submission is also without any substance because admittedly the polythene bag was properly sealed and slip attached to it was having signature of the two Panchas, accused and that of the investigating officer. That was produced before the Court in a container of cloth bag. It is true that investigating officer has further stated that container was also sealed by him at the time of seizure of the mudammal article. In our view as the polythene bag containing mudammal article was found intact and was properly sealed and having signatures of the accused as well as witnesses, it cannot be said that mudammal article was tampered with in any manner by mentioning the crime number on the slip attached to the polythene bag.
7. In this view of the matter, we hold that there is no substance in this appeal and the same is, therefore, dismissed.
