Decided on August 23,2013

Hari Bahadur S/O Ram Rokaya Appellant


- (1.) Present appeal is directed against the judgment and order dated 23.02.2010, passed by Special Sessions Judge, Champawat, in Special Session Trial No. 6 of 2009, whereby appellant was held guilty for the offence punishable under Section 8/20 of N.D.P.S. Act and was sentenced rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- and in default of making payment of fine, to undergo additional rigorous imprisonment of one year.
(2.) Prosecution story, inter alia, are that on 25.12.2008, PW1 S.I. Girish Chandra Bhatt alongwith Head Constable Balwant Singh PW2, Constable Ishwari Dutt Sharma, Constable Praveen Kumar and Constable U.T. Sunil Kumar left the Thana vide reput No. 17 at about 11:40 A.M. in government vehicle No.UA03-4592, being driven by Constable driver Kharag Singh, for law and order and patrolling duty; when police party reached at Meena Bazar Tiraha, police informant passed on secret information to the effect appellant was carrying charas and was coming through Pampapur forest and would go to Nainital, police could apprehend him; having believed the secret information, police party tried to have independent witness, however, none could agree to become independent witness; thereafter police personal made search of each other and having satisfied that none of them was carrying any contraband after leaving government vehicle then and there proceeded on foot towards Pampapur forest and concealed themselves behind the bushes in Pampapur forest near high tension electricity pole; after some time, appellant was seen coming from the forest side; police informer pointed out towards the appellant and told the police party that appellant was the person who was carrying charas; the moment, appellant reached near the police party, he was directed to be stopped, however, instead of stopping, he took 'U' turn and started running towards jungle; appellant was chased and was apprehended at about 3:10 p.m.; police told the appellant that police had secret confirmed information that appellant was carrying charas, therefore, if appellant wish he could be searched in the presence of Magistrate or gazzetted officer; on this, appellant told the police party that since he had already been apprehended and he was carrying charas in the bag, therefore, police could search him; appellant was also told to make search of the police personnel to find out as to whether either of them was carrying any contraband; on this, appellant refused to search the police personnel; consent letter was prepared by PW1 Girish Chandra Bhatt on the spot and obtained the signature of the appellant thereon; thereafter bag was taken from the appellant and it was found that it was carrying charas; charas was weight on the weighing machine then and there and it was found to be of 1 Kg; appellant was asked as to whether he was having any licence to carry the charas, appellant started apologizing the police personnel; on being asked, appellant disclosed his identity; sample of contraband was taken out; sample, contraband so recovered alongwith the bag were kept under the seal and signature of PW1 Girish Chandra Bhatt; sample seal was prepared on the spot and thereafter, accused, contraband so recovered, sample so drawn alongwith the sample seal were brought to the Thana and deposited in the Thana. On the report of PW1 Girish Chandra Bhatt, Chick F.I.R. Case Crime No. 1149 of 2008, under Section 8/20 N.D.P.S. Act, was registered in Police Station Banbasa, District Champawat.
(3.) Initially, investigation was handed over to PW5 S.I. Narayan Singh and thereafter it was handed over to P.W.7 S.I. B.C. Sharma. After obtaining F.S.L. report, chargesheet was submitted against the appellant under Section 8/20 N.D.P.S. Act.;

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