- (1.) Appellant Shyam Babu Vishwakarma alias Ram Babu alias Shyam Babu is aggrieved by his conviction u/s 22 ( C ) N.D.P.S. Act and 489 (C) IPC and imposed sentences of ten years RI with Rs. 1 lakh fine, the default sentence being two years further RI, on the first count and two years RI with fine of Rs. 1000/-, the default sentence being one month further RI on the second count, recorded by Additional Sessions Judge, Court No. 1 Banda, vide impugned judgement and order dated 25.5.2010, passed in Special Case No. 4 of 2008, State Vs. Shyam Babu Vishwakarma and S.T. No. 64 of 2008 (State Vs. Ram Babu alias Shyam Babu) and consequently has challenged the said judgement in the instant appeal u/s 374 (2) Cr.P.C. Further directions by the trial judge were that both the sentences shall run concurrently and set off shall apply to calculate total period of incarceration.
(2.) Stated briefly, prosecution allegations against the appellant, as extracted from the recovery memo Ex. Ka 2 and chik FIR Ex. Ka 8 and testimonies of fact witnesses, were that on 24.12.2007, informant P.W. 1 Manoj Kumar Kaushik, SHO P.S. Kotwali, district Banda started for routine checking duty at 12.35 p.m., vide Rapat No. 35, in an official jeep driven by Vansh Narain accompanied by Constables Ram Pratap Singh and Budha Singh Bundela and came to tri-section crossing in front of Awasthi Park at 6 p.m. where he met Sub Inspector K.N. Singh P.W.-2 and all of them entered into conversations, when SOG Constables Om Narayan Shukla, Constable Iqbal Uddin, Constable Vinay Pratap and Constable Kalimuddin also arrived and joined them. In the midst of their talks, an informer informed them that a person on a red Hero Honda motor cycle coming from District Board side is carrying smack and fake currency note. Believing information to be correct, P.W. 1 vainly endeavoured to join independent witnesses and consequently, all of them conducted inter se search of each other but could not find any objectionable substance. They thereafter, lay in waiting near the road at a distance of 100-150 meters from District Board for the person regarding whom, they were tipped off. At 6.45 p.m. they spotted a person coming from District Board side on a motor cycle. Informer pointed out at him and retreated from the spot. Approaching nearby motor cycle rider, was stopped and questioned, on which he disclosed his name as Shyam Babu Vishwakarma, the appellant. P.W. 1 thereafter informed him that they had concrete information about his possessing smack and fake currency note. Initially appellant denied the said allegations but thereafter confessed that he had small quantity of smack and a fifty rupees denomination fake currency note. Informant P.W. 1 thereafter made accused appellant aware of his rights u/s 50 NDPS Act of being searched before a Gazetted Officer or a Magistrate of his choice on which appellant in writing gave, Ext. Ka-2, of being searched by searching police party itself. Subsequent to written consent, that P.W. 1 and other police personnel got their personal search conducted by the appellant to rule out any false implication and subsequent thereto P.W.-1 conducted physical/bodily search of the appellant and found from right pocket of his pujama type full pant smack wrapped in a tattered piece of a newspaper, which on weighing came to be six grams, material Ext. 1. From the left side pocket of the pant a fake 50 rupees currency note, which resembled original currency, was recovered. On further inquiry appellant informed that a friend of his had given him the narcotic and the fake currency note but he did not disclose his name. Regarding motor cycle it was informed that the same belonged to him but failed to produce any paper in it's respect. Since appellant was involved in contravention of provisions of NDPS Act, I.P.C. and M.V. Act with penal consequences that, he was arrested under section 22 NDPS Act, 489 IPC and M.V. Act. Recovered narcotic and the fake currency note were separately seized and sealed, regarding which recovery memo Ext. Ka-1 was got scribed through S.I. K.N. Singh, P.W. 2 at the dictation of informant Manoj Kumar Kaushik P.W. 1. Seizure memo thereafter was read over to the appellant and other police personnel who all thereafter signed on it. Arrested accused along with recovered articles was brought to the Police Station Kotwali Nagar, Banda, where FIR of Crime Nos. 1485 of 2007, 1486 of 2007 and 1487 of 2007 was got registered u/s 22 NDPS Act, 489 ( C) IPC, and 181/192/196/207 M.V. Act respectively and thereafter accused was put in the police station lock up. Investigation of the crime was handed over to SSI R.N. Tripathi.
(3.) Following day 25.12.2007 in the morning at 9.45 A.M. P.W. 1 and I.O. thoroughly interrogated the appellant, who disclosed that one Ramjas Shivhare resident of Naraini locality presently residing some where in Kanpur, is engaged in narcotic trade and he had supplied him huge quantity of narcotic 3-4 days prior. From the supplied narcotic small quantity was recovered from the appellant previous day when he was carrying it for sale and was apprehended. Appellant further disclosed that huge quantity of smack is kept in his house which he can get recovered. On such a disclosure statement, P.W. 1 informed C.O. Komal Kumar Bhalla P.W. 4, who instructed P.W. 1 to bring appellant accused to Attarra octroi post, near appellant's house, where he will join them. P.W.1 accompanied by I.O., SSI R.N.Tripathi, PW2, PW3 Chaturbhuj Singh, persons of SOG along with the accused came to Attarra octroi post where they were joined by C.O.K.K. Bhalla P.W. 4, who made certain inquiries from the appellant. Searching and raiding police party then efforted to secure presence of independent witness, but failed in their attempt. At 10.15 a.m., appellant took the police party to an inside room of his house and after opening a safe kept there he brought out a black coloured bag, on unzipping of it, two polythene packets containing smacks were recovered. In one polythene smack was in granule form whereas in the other packet it was in grinded or mined form. H.C.P. Chaturbuj Singh Patel and Constable Bundela brought electronic measurement from the shop of Rajendra Jadia of the bullian market from the motor cycle of P.W. 2 and weighing from it, granule smack were found to be 3 kgs whereas grinded or mined was 1 kg. 15 grams. Thus, in all total 4 kg 15 grams of smacks were alleged to have been recovered from the bag kept in the safe inside house of the appellant. Raiding Party drew two samples of 50 grams smack from both the packets, seized and sealed it. The residue smacks were re-deposited in the same bag, which then was sealed with outer cloth covering. Recovery memo Ext. Ka-3 regarding seizure of the smack was scribed by S.I. K.N. Singh P.W.2 and was singed by P.W.4 and a copy of it was handed over to the appellant, who also signed on it. Recovered granule smack inside polythene is material Ext.-2, whereas mined/grinded smack is material Ext. 3. Another small sealed bundle contained two small quantity of smack were exhibited as material Ext.-4 and 5, which seems to be the drawn samples, were produced during trial.;