U.O.I.Thr. Praveen Kunderiya ... vs Fakir Chand @ Neta
2023 Latest Caselaw 420 MP

                                  1
 IN     THE      HIGH COURT OF MADHYA PRADESH
                       AT INDORE
                            BEFORE
                HON'BLE SHRI JUSTICE VIVEK RUSIA
                               &
                HON'BLE SHRI JUSTICE ANIL VERMA
                     ON THE 6 th OF JANUARY, 2023
               MISC. CRIMINAL CASE No. 15418 of 2019

BETWEEN:-
U.O.I.THR. PRAVEEN KUNDERIYA  NARCOTICS
CONTROL BUREAU INSPECTOR I.O. NARCOTICS
CONTROL BUREAU DIVISIONAL UNIT INDORE
(MADHYA PRADESH)

                                                                .....APPLICANT
(BY SHRI MANOJ KUMAR SONI, LEARNED COUNSEL FOR THE
APPLICANT)

AND
FAKIR CHAND @ NETA S/O LAXMINARAYAN, AGED
ABOUT 35 YEARS, DAGDI HOUREPUR TEH. MANASA
(MADHYA PRADESH)

                                                             .....RESPONDENT


      Th is application coming on for orders this day, JUSTICE VIVEK

RUSIA passed the following:
                                   ORDER

The Union of India has filed this petition under Section 378(4) of Cr.P.C. seeking leave to appeal against the judgment of acquittal dated 2/11/2018 passed in Special Session Trial No.4/2016 by learned Special Judge, NDPS Act whereby respondent Fakir Chand @ Neta Singh has been acquitted for the offence punishable under Section 8 C/21(c) and section 29 of N.D.P.S. Act.

As per prosecution story, a discrete information was received on

18/08/2015 that two persons namely Prakash Bind and Gautam Sav are carrying 1 Kg. of Heroin and they are coming from Revtipur Gazipur, (U.P.) to deliver the same to Madan Singh resident of Gandhisagar Neemuch. On the basis of said information, the police started searching train as well as bus. On 19/08/2015, a bus No.MP-44-HA-1198 was apprehended and search was started. In that search, Gautam was found sitting on a third seat carrying a bag and Antim Chawda was sitting beside him. They were personally searched but nothing was found. Thereafter, the bag was searched in which 850 grams of Heroin was found alongwith the clothes and railway ticket. The statements of accused persons Antim and Gautam were recorded under Section 67 of NDPS

Act and both were made accused in this case. After undergoing trial, both have been convicted under Section 8/21(c) of NDPS Act.

After due appreciation of the entire evidence available on record, the trial court by the impugned judgment dated 02/11/2018 acquitted the respondent from the aforesaid charges. Aggrieved by which the applicant/Union of India has filed this petition for grant of leave to appeal against the impugned judgment.

We have heard learned counsel for the parties and perused the impugned judgment.

Except the statement recorded under Section 67 of NDPS Act no incriminating material was collected by the prosecution against the respondent. He has been made accused only on the basis of 27 memo of co-accused which is not admissible in the eyes of law.

Recently, the Apex Court in the case of Tofan Singh Vs. State of Tamil Nadu, (2021) 4 SCC 1 has held that statement under Section 67 of N.D.P.S. Act is not admissible. Apart from the statement, nothing incriminating

material has been collected by the prosecution to implead the respondent in the crime.

Resultantly, We do not find any perversity in the impugned judgment dated 02.11.2018 and any ground for grant of leave to appeal against the judgment of acquittal, accordingly, this petition is hereby dismissed.

Certified copy as per Rules.

                             (VIVEK RUSIA)                                              (ANIL VERMA)
                                 JUDGE                                                     JUDGE
                        VS



Digitally signed by
VARSHA SINGH
Date: 2023.01.07 11:05:25
+05'30'