Prafulla C.Pant, J. -
(1.) THIS appeal, received through Superintendent District Jail, Dehradun, moved by the accused/appellant Chatur Singh Gole is directed against the Judgment and order dated 02.07.2010 passed by Special Sessions Judge/Sessions Judge, Champawat in Special Session trial no. 21 of 2009, whereby said court has convicted the accused Chatur Singh Gole under section 8/20 of Narcotic Drugs and Psychotropic Substances Act, 1985, and sentenced him to rigorous imprisonment for a period of ten years and directed to pay fine of Rs. 1,00,000/ -. It has been further directed by the trial court that in default of payment of fine the convict shall undergo rigorous imprisonment for a further period of one year. Heard learned Amicus Curiae for the appellant and Learned brief holder for the State and peruse the lower court record.
(2.) PROSECUTION story in brief is that on 19.08.2009 at about noon, PW I Amit Kumar, Inspector, Customs along with PW 2 Raj Kumar Inspector, Customs and some other staff was on checking duty. Some 10 -12 persons were seen coming from the side of Nepal, out of them one attempted hurriedly pass through the Customs barrier. Suspecting that he might be taking some contraband, the customs staff asked him to stop and one of the Sepoy ran and caught hold of the person trying to escape. On being apprehended, the person disclosed his name as Chatur Singh Gole S/o Shri Harkh Bahadur Gole, R/o Village Pakhura, District Makwanpur, Nepal. On taking search of the beg nothing objectionable was found. However, when his person was search the customs staff got suspicious. They told Chatur Singh Gole if he wishes his search could be made in the presence of some Magistrate or Shri S.A. Khan, a Gazetted Officer of customs department. Accused Chatur Singh Gole, opted to be search in the presence of Departmental, Gazetted Officer, Shri S.A. Khan. Two independent witnesses namely PW 3 Mohd. Farukh and another person Surat Singh were also called. When the accused Chatur Singh Gole was made undressed, under the T -shirt it was found that the accused had put on a markine cloth Jacket of two leaves and one cutting the pockets made of two leaves of Markine cloth, five kilograms Cannabis (CHARAS) was recovered. According to the customs staff the value of the Cannabis was Rs. 1,50,000/ -. They prepared the recovery memo and got filed criminal case against the accused Chatur Singh Gole. It appears that on the complaint, PW 5 Piyush Kumar, Inspector Customs, investigated the case and cognizance of the offence was taken by the trial court. The trial court after giving necessary copies to the accused as required u/s 207 of Cr.P.C., on 20.11.2009, framed charge of offence punishable under Section 8/20 of Narcotic Drugs and Psychotropic Substance Act, 1985 against the accused Chatur Singh Gole, who pleaded not guilty and claimed to be tried.
(3.) THEREAFTER , the prosecution got examined PW1 Amit Kumar, Inspector of Customs departments. PW 3 Mohd. Farukh, (public witness of the recovery), PW4 S.A. Khan, Superintendent Customs in whose presence search was made, and PW5 Piyush Kumar, Inspector Customs. The oral and documentary evidence was put to the accused under Section 313 Cr.P.C., in reply to which, he alleged that he is innocent. However, no evidence in defence was adduced. The trial court after hearing the parties found that prosecution has successfully proved charge of offence punishable u/s 8/20 of Narcotic Drugs and Psychotropic Substances Act, 1985, and convicted him accordingly. After hearing on sentence, the convict was sentenced to rigorous imprisonment for a period of 10 years and directed to pay a fine of Rs. 1,00,000/ -. Aggrieved by said Judgment and order dated 2.07.2010 passed by the Special Judge/Session Judge, Champawat in Special Sessions Trial No. 21 of 2009, this appeal is preferred by the convict.;