Decided on May 21,2013

Yogendra Dutta @ Sonu Dutta Appellant


Alok Singh, J. - (1.) THIS is an appeal against the judgment and order passed by Special Sessions Judge, Udham Singh Nagar dated 20th July, 2009 in Special Sessions Trial No. 63 of 2007, whereby appellant was found guilty for the offence punishable under Section 8/20 of the N.D.P.S. Act and was sentenced rigorous imprisonment for a period of ten years and to pay fine of Rs. 1 lac, and in default of making payment of fine, to undergo additional simple imprisonment of one year. Brief facts of the present case, inter alia, are that on 31/01/2007, Inspector J.C. Pathak PW3 alongwith Pooran Lal Verma PW1, H.C.P. Mahendra Pal Singh PW4, Constable Harish Sharma, Constable Balkrishna, and Constable Bhupendra Singh left Thana vide G.D. No. 45 at 6:40 p.m. for law and order duty; when police party was going from village Alawardi towards village Naugawannath, they noticed appellant coming on foot; having seen the police party, appellant started rushing towards village Naugawannath; however, he was apprehended by the police party at about 8:45 p.m.; on being asked, appellant disclosed his identity and told the police party that he was carrying Charas in a white plastic bag being carried by him in his hand; J.C. Pathak PW3 told the appellant that if he wish, he could be searched in the presence of the Gazetted Officer/Magistrate; however, appellant agreed to be searched by the police party; despite the fact appellant agreed to be searched by the police party, Head Constable Mahendra Pal Singh was sent to Khatima to bring weight and measurement; after sometime Head Constable Mahendra Pal Singh came back alongwith weight and measurement and told J.C. Pathak PW3 that no Gazetted Officer and Magistrate was available at Khatima. Moreover, Deputy Superintendent of Police and Tehsildar were busy in election duties and doctor was also not available in the hospital; thereafter, consent was obtained from the appellant in writing for the search by the police party; white plastic bag was recovered from the right hand of the appellant and about 7 kgs. charas was recovered from the bag being carried out by the appellant; from the charas so recovered, 100 grams was taken out as sample and, thereafter, contraband so recovered and sample so taken out were kept in different sealed cover under the signature and survey mohar of J.C. Pathak PW3 and sample seal was also prepared and thereafter contraband and appellant was brought to Thana and Chick F.I.R. was got registered at 11:30 p.m. on 31.01.2007.
(2.) INVESTIGATION was handed over to S.I. Shiv Singh Gusain PW5. Investigating Officer S.I. Shiv Singh Gusai, after investigation, submitted chargesheet before the Special Judge, N.D.P.S. Charges were framed under Section 8/20 of the N.D.P.S. Act. Appellant denied the charges and claimed trial. From the side of the prosecution, Inspector Pooran Lal Verma PW1, H.C. 68 Nain Ram PW2, Inspector J.C. Pathak PW3, H.C.P. Mahendra Pal Singh PW4, S.I. Shiv Singh Gusain PW5 and 75 C.P. Kailash Chandra and Arvind Kumar PW7 were examined. From the side of the appellant Smt. Sunita Devi DW1 and Pooran Kapdi DW2 were examined as defence witness. Thereafter, statement of the accused was recorded under Section 313 of the Cr.P.C.
(3.) HAVING perused the entire material made available on record, learned Sessions Judge was pleased to convict and sentence the appellant vide judgment and order impugned in the present appeal.;

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