PRAFULLA C.PANT, J. - (1.) THIS appeal, preferred under section 374 of Code of Criminal Procedure, 1973, (for short Cr.P.C) is directed against the judgment and order dated 28.08.1997, passed by III Additional Sessions Judge, Nainital, in Special Sessions Trial No. 63 of 1993, whereby said court has convicted the appellant Laxman Singh under section 20 read 2 with section 22 of Narcotic Drugs & Psychotropics Substances Act, 1985(for short N.D.P.S. Act), and sentenced him rigorous imprisonment for a period of 10 years and also directed him to pay fine of Rs. 1,00,000/- (Rupees one lac only) in default of payment of which the convict has been directed to undergo rigorous imprisonment for a further period of 1 year.
(2.) HEARD learned counsel for the parties and perused the lower court record. Prosecution story in brief is that on 08.09.1992, P.W.1 Sub-Inspector Harish Chandra Singh of Police Station Tallital, District Nainital, alongwith other police personnel was on patrol duty on Nainital-Bhowali Road when he got a information that two persons are carrying CHARAS(cannabis) illegally. Prosecution case is that the police party on receiving said information, made attempts to get some independent witnesses however no one agreed to be a witness. After sometime, at about 12:30 hours (noon) on NainitalBhowali Road near cremation Ghat, accused/appellant Laxman Singh alongwith another person was seen coming. According to the police, they (police) made firstly search of their own person to be satisfied that no one is in possession of any illegal item. Thereafter, they stopped the two persons coming towards them, one of them disclosed his name as Laxman Singh (appellant) son of Trilok Singh, R/o Padampuri, and another disclosed his name as Jaswant Singh (since deceased) son of Darar Singh R/o Dhanachuli. The police party told the two that they had information about the fact that they (accused) had CHARAS (cannabis). The policemen further told the two accused that they are at liberty to get their search done before Gazetted Officer or Magistrate. However, the two accused on finding themselves caught by the policemen told that the police party may search their person. On this, the policemen made search of person of the two accused. Accused/appellant Laxman Singh was found in possession of 2kg of charas (cannabis). The another one was found in possession of 100gm of charas. They failed to show license to carry the psychotropic substance. Finding that the two have committed offence punishable under section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985. The policemen took the seized item (CHARAS) in their possession, sealed it and prepared recovery memo (Ex. A1). Both the accused were arrested and FIR was lodged at Police Station Tallital, Nainital, which was registered as crime no. 357 of 1992. Investigation was taken up by P.W.2 Kishan Singh Hyanki, the then Station House Officer of Police Station Bhowali. After interrogating witnesses and completion of investigation, charge sheet (Ex. A6) was filed by the Investigation Officer against the accused/appellant Laxman Singh. It appears that separate charge sheet was filed against Jaswant Singh. However, he (Jaswant Singh) died during trial and his case stood abated.
(3.) THE Special Sessions Court, on receipt of the charge sheet, appears to have gave necessary copies to the accused as required under section 207 of Cr.P.C. After hearing the parties, on 11.10.1993, a charge of offence punishable under section 20 read with section 22 of Narcotic Drugs and Psychotropic Substances Act, 1985, (for short NDPS Act) was framed against the accused/appellant Laxman Singh who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Sub-Inspector Harish Chandra Singh complainant/eye witness ,P.W.2 Sub-Inspector Kishan Singh Hyanki (Investigating Officer) and P.W.3 Head-Constable Nafees Ahmad (eye witness of the recovery). Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which the accused pleaded that he has falsely been implicated in the case. However, in defence no evidence was given. The trial court after hearing the parties, found accused/appellant Laxman Singh guilty of charge of offence punishable under section 20/22 of NDPS Act, 1985. After hearing on sentence, the trial court sentenced him rigorous imprisonment for a period of 10 years and also directed him to pay fine of Rs. 1,00,000/- (Rupees one lac only). Aggrieved by said judgment and order dated 28.08.1997, passed by III Additional Sessions Judge, Nainital, in Special Session Trial No. 63 of 1993, this appeal was filed before Allahabad High Court by the convict on 22.10.1997, where it was admitted on 23.10.1997. The appeal is received by this Court under section 35 U.P. Reorganization Act, 2000 (Central Act 29 of 2000) for its disposal.;