Decided on July 17,2013

RAJ KUMAR Appellant


- (1.) Present appeal is directed against the judgment and order dated 16.03.2011 passed by Special Judge (NDPS Act)/ 3rd Additional Sessions Judge, Haridwar in Special Sessions Trial No. 17 of 2010 whereby appellant was held guilty for the offence punishable under Section 8/20 of NDPS Act and was sentenced to undergo 10 years rigorous imprisonment and to pay fine of Rs. 1,00,000/- and in default of making payment of fine, to undergo 1 year additional simple imprisonment under Section 8/20 of the NDPS Act.
(2.) Brief facts of the present case, inter alia, are that on 25.11.2009, SHO J.C. Pathak (PW3) along with SI Mahendra Singh PW1, Constable Preetam Singh, Constable Jagdev Singh & Constable Sunil Kumar, vide report no. 4 at 05.30 a.m., left the police station for combing and searching the suspects; when police party reached near Kata Pathar, appellant was seen coming from the side of Kata Pathar towards Baadwala with a bag hanging on his back; having seen the police party, appellant set towards jungle, as if, he was urinating; police party asked him to come out, he, however, instead of coming, started running inside the forest; he was chased and ultimately, apprehended by the police at 07.45 a.m., 500 metres inside the forest; on being asked, appellant disclosed his identity and address and told the police party that he was carrying 6 1/2 kg of charas and was going to sell the same in Chandigarh; PW3 told the appellant, if he wish, he could be searched in the presence of a Gazetted Officer or a Magistrate, as it was his right, however, appellant told the police party that since he had already been apprehended by them, therefore, he had no objection to be searched by the police party; on this, police party searched each other and having satisfied that none of them was having any contraband, took search of bag hanging on the back of the appellant; after opening the bag, two polythene bags were found and on opening them, it was found that both the polythene bags were containing charas; Constable Preetam Singh was sent to bring weighing scale and on being weighed, 6.250 kg of charas was found in both the polythene bags; appellant was informed by the police party that since he was carrying charas without having any valid license or permission, therefore, he was being arrested; from contraband, so recovered, 100 gms of charas was taken out, as sample; contraband along with bag and sample of charas were kept in separate sealed covers under the seal and signature of PW3; contraband, sample, sample seal and appellant were brought to the police station; since appellant was found, all of sudden, carrying charas and area was near the forest, therefore, no independent public witness was found.
(3.) Investigation was handed over to PW5 Arvind Kumar, who having investigated the matter, submitted chargesheet against the appellant for the offence punishable under Section 8/20 of the NDPS Act.;

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