Decided on May 04,2012



Prafulla C. Pant, J. - (1.) THIS appeal is directed against the judgment and order dated 30.01.2010, passed by Special Judge/Session Judge, Pithoragarh, in Special Sessions Trial No. 7 of 2007, whereby said court has convicted the accused/appellant Kalyan Singh under section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short N.D.P.S. Act), and sentenced him to rigorous imprisonment for a period of ten years and directed to pay fine of Rs. 1 lac. Heard learned counsel for the appellant, and learned counsel for the State, and perused the lower court record.
(2.) PROSECUTION story in brief is that on 01.06.2007, P.W. 3 S.I. Ram Datt Joshi alongwith Assistant S.I. Ravindra Singh (P.W. 2), Constable Keshav Lal (P.W. 1) and other constables was coming back after performing law and order duty within the limits of Police Station Dharchula. When the police team in a jeep reached near Army Crossing they saw two persons coming from the side of Village Hat who were carrying their bags with them. Said two persons, on seeing the police party turned back and started going speedily. The policemen who were in the government vehicle bearing registration no. UA -05/4673 got down and surrounded the two. One of them disclosed his name Kalyan Singh Bhandari (accused/appellant) and another one told his name Jitendra Singh. When they were sternly asked as to what they were carrying in the bags they disclosed that it was cannabis (CHARAS). On this, the police party told the accused/appellant and his associate that if they desire their search can be made before the Magistrate or any Gazetted Officer. Prosecution case is that the accused/ appellant and his associate opted to be searched in the presence of Magistrate. Thereafter, both the persons were taken before the Sub Divisional Magistrate, Dharchula Shri Anoop Kumar Nautiyal (P.W.5), and search was made. From the bag which was carried by accused Kalyan Singh it was found that 7.600 kg, cannabis was lying in it. From the possession of another person 4 kg, of cannabis was found. The recovery memo was prepared, samples were taken from the recovered cannabis and both the packets were separately sealed. The contraband item in sealed packets and sealed samples was taken to the Malkhana for being deposited. Necessary information was sent to the superior officers through radiogram in compliance of section 57 of N.D.P.S. Act. P.W. 7 Inspector Ramesh Chandra Thapliyal investigated the crime, after P.W. 3 S.I. Ram Datt Joshi got lodged First Information Report (Ex. A7) on the basis of which crime no. 184 of 2007 and 185 of 2007, were registered against the two accused. After investigation charge sheet (Ex. A31) was filed against accused/ appellant Kalyan Singh. A separate charge sheet was filed in respect of the another accused. (Trial of Jitendra Singh was also conducted with the present accused/appellant. However, his appeal is not before this Court for its consideration). On receipt of the charge sheet, after giving necessary copies, Special Court appears to have heard the parties, and framed charge of offence punishable under section 20/22 N.D.P.S., Act, on 18.09.2007, in reply to Which accused/appellant Kalyan Singh pleaded not guilty and claimed to be tried. On this prosecution got examined P.W. I Constable Keshav Lal (witness of search and recovery), P.W.2 Assistant S.I. Ravindra Singh (also witness of recovery and arrest of the accused), P.W. 3 S.I. Ram Datt Joshi (complainant and witness of recovery who arrested the accused), P.W.4 Heera Lal (shopkeeper who brought his balance and weight for weighing contraband), P.W. 5 Shri Anoop Kumar Nautiyal, Sub Divisional Magistrate (in whose presence search was made), P.W.6 Constable Kuber Singh (who took samples of cannabis to the Forensic Laboratory Dehradun, for chemical analysis), P.W. 7 Incharge Inspector Rakesh Chandra Thapliyal (who investigated the crime), and P.W.8 Head Constable Daulat Singh (formal witness). The oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which he pleaded that evidence adduced against him is false. However, no evidence in defence was adduced. The trial court, after hearing the parties found accused Kalyan Singh guilty of charge of offence punishable under section 20 N.D.P.S. Act. After hearing on sentence, the convict was sentenced to rigorous imprisonment for a period of ten years, and directed to pay fine of Rs. 1 lac. Aggrieved by said judgment and order dated 29.01.2010, passed in Special Trial No. 07 of 2007, this appeal is filed by the convict.
(3.) THERE are two important features of this case i.e., (1) the quantity of the cannabis (CHARAS) said to have been recovered is 7.600 kg. which is much higher then the minimum commercial quantity, and (2) the search and recovery said to have been made before the Sub Divisional Magistrate.;

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