Decided on April 09,2013

Akbar Rana Appellant


- (1.) Appellant, while languishing in jail, has preferred this jail appeal through jail authorities challenging the judgment and order dated 18.05.2009 passed by Sessions Judge, Pithoragarh in Sessions Trial No. 9 of 2007 whereby learned Sessions Judge found the appellant guilty for the offence punishable under Section 20 (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act") and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 1,00,000/- failing which to undergo additional imprisonment for two years.
(2.) Brief facts of the present case, inter alia, are that Sub Inspector Ajay Shah (PW4) lodged an FIR with police station Jhoola Ghat, District Pithoragarh on 05.07.2007 at 01.25 p.m. stating therein that on 05.07.2007, he along with Constable Govind Singh PW1 and Constable Santosh Dobhal went on patrolling duty in Government Vehicle No. UA 08 B 9616; they were checking the vehicular traffic; at about 11.45 a.m. police party noticed that appellant was going on foot towards Banada and appellant having noticed the police party started behaving abnormally; police party on the suspicion asked him to stop and thereafter, detained him; appellant was asked the reason of his behaving abnormally; on this appellant disclosed his name as Akbar Rana and told the police personnel that he was carrying 1 kg of charas in his bag; on this PW4 SI Ajay Shah asked the appellant to produce the license of charas but appellant failed to produce any document and started apologizing for carrying charas; on this PW4 asked the appellant, if he wish, he could be searched in the presence of a Gazetted Officer / Magistrate; on this appellant stated that he did not wish to be searched in presence of a Gazetted Officer / Magistrate and has told the police personnel that he had trust on the police party, therefore, police party may conduct the search; on this a consent letter was prepared on the spot, thereafter, police personnel searched each other and on being satisfied that none of them had any illegal material, took the bag from the appellant and found charas therein. Constable Santosh Dobhal was sent to police station in order to bring a balance (weighing scale); at about 12.25 p.m. Constable Santosh Dobhal brought the balance and on being weighed, charas was found to be of 1 kg; appellant was told that he had committed an offence punishable under Section 20/22 NDPS Act and was arrested at 12.30 p.m.; charas, so recovered, was once again kept in the bag carried by the appellant and bag was kept in a seal cover under the seal of PW4; specimen seal of PW4 was also prepared and thereafter, appellant along with contraband was brought to police station. FIR was got registered at 01.25 p.m., investigation was handed over to PW5, who commenced the investigation on the next day i.e. on 06.07.2007.
(3.) Appellant was produced before the Chief Judicial Magistrate on 06.07.2007 where his confessional statement was got recorded by the Chief Judicial Magistrate, Pithoragarh under Section 164 Cr.P.C. Sample was taken out with the permission of Chief Judicial Magistrate and was sent for chemical examination and as per the report of chemical examiner, sample was found to be of charas. After completion of investigation, charge-sheet was submitted against the accused appellant.;

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