Decided on July 30,2013

TARA DUTT Appellant


- (1.) PW1 S.I. Mahesh Chandra Srivastava of police station Ramnagar lodged an FIR against the accused (in the name of Harish Chandra, which name was subsequently found to be fake) on 24.03.1999, at 02:45 A.M., in police station Ramnagar, in connection with offence punishable under Section 18/20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act). After the investigation, a charge-sheet was submitted against the accused in respect of selfsame offence. Six kilogram of ganja was found to be in possession of accused. Consequently, when the accused was tried and charge for the offence punishable under Section 20 of NDPS Act was framed against him, he pleaded not guilty to the charge and claimed trial. Charge was framed against the accused on 18.01.2001.
(2.) PW1 S.I. Mahesh Chandra Srivastava, PW2 Constable Rajpal Singh and PW3 S.I. Shiv Singh Gusain (I.O.) were examined on behalf of the prosecution. Incriminating evidence was put to the accused under Section 313 of Cr.P.C., in reply to which he said that he was falsely implicated in the case. No evidence was given in defence. After considering the evidence on record, learned Addl. Sessions Judge / I F.T.C., Nainital, vide impugned judgment and order dated 28.10.2002, convicted the accused for the offence punishable under Section 20 of NDPS Act. He was directed to undergo rigorous imprisonment for two years alongwith a fine of Rs. 10,000/, in default of payment of which, he was required to undergo six months' further imprisonment. Aggrieved against the impugned judgment and order dated 28.10.2002, present criminal appeal was preferred.
(3.) PW1 S.I. Mahesh Chandra Srivastava, in his examination-in-chief, said that he, alongwith other police personnel, proceeded for patrolling duty on 24.03.1999, at 00:10 hours. PW1 alongwith others reached at Ranikhet road where they found two persons standing near an English Wine Shop. PW1 became suspicious. PW1 apprehended them at 00:45 hours. One of the persons disclosed his name as Harish Chandra, son of Urba Singh. He admitted that he was having ganja in his possession. PW1 offered search by a Gazetted Officer or a Magistrate. Accused declined the offer and wanted PW1 to search him. A bag containing six kilogram of ganja was recovered from the possession of accused Harish Chandra. Harish Chandra was taken into custody. 135 gms. of ganja was taken out as representative sample. The rest was sealed under specimen of seal. Recovery memo (Ext. Ka-1) was prepared, which was signed by the accused and the witnesses. A copy of Ext. Ka-1 was given to the accused. The accused was taken to the police station alongwith the case property, and the case was registered against the accused. PW1 proved chik FIR (Ext. Ka-2), and entry of the same in G.D. (Ext. Ka-3). The contraband was presented before the trial court as Mat. Ext. 1 alongwith bag Mat. Ext. 2. In the cross-examination, PW1 said that he alongwith other police personnel started from the police station at 00:10 hours. They went on foot. The place of incident was approximately at a distance of 500 meters from the police station. There were shops and residential houses in the vicinity of the place of incident. The weight of the contraband was mentioned on the basis of guesswork. The Investigating Officer took statement of the accused on 30.03.1999. A copy of the recovery memo was given to the accused. Accused did not carry the same to the police station. Since the accused was arrested instantaneously, therefore, the police personnel did not give their search to the accused. The information regarding seizure of contraband was given to the superior officer on R.T. set. Nothing came in the cross-examination of PW1 to suspect his testimony. Although no independent witness was procured and examined, yet the fact remains that the accused was arrested in the dead of night, when the possibility of procuring a public witness was a remote possibility. ;

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