Shri Kant Tripathi, J. - (1.) THE Appellant Salim Khan alias Guddu has preferred this appeal against the judgment and order dated 22.11.2002, rendered by Mr. Ramakant Singh, Special Judge (Narcotics Drug and Psychotropic Substances Act), Varanasi in Criminal Case No. 479 of 2001, Union of India v. Salim Khan alias Guddu, whereby the learned Special Judge convicted and sentenced the Appellant under Section 8/21(c) of the Narcotics Drug and Psychotropic Substances Act (hereinafter referred to as 'the Act') to undergo rigorous imprisonment of ten years and also to pay a fine of Rs. One lac and in default of payment of fine to undergo simple imprisonment of two and a half years.
(2.) THE prosecution story in brief is that on 11.6.2001, PW -1 Brijesh Kumar Dubey was posted as Intelligence Officer in the Narcotics Bureau, Varanasi. He got information from an informer that the Appellant was involved in the business of sale and purchase of Heroin, which was being done in the house No. E -29, Konia Colony, Dhobighat. PW -1 Brijesh Kumar Dubey reduced the factum of information in writing and took permission of the Assistant Commissioner, Customs and Excise, Varanasi for making search in the house of the Appellant. After obtaining the permission, PW -1 Brijesh Kumar Dubey proceeded to the house of the Appellant alongwith other officers, namely, Inder Singh, R.A. Dubey, Y.C. Mishra. Man Singh and R.N. Verma and made a search of the Appellant's house at about 9.45 AM and recovered 276 grams of Heroin from his house. PW -1 Brijesh Kumar Dubey, before carrying out the search, informed the Appellant that he had right to have the search in the presence of a gazetted officer or a Magistrate but the Appellant declined to have the search by a gazetted officer or a Magistrate and permitted the PW -1 Brijesh Kumar Dubey to carry out the search. It is also alleged that the PW -1 Brijesh Kumar Dubey took two samples each of 5 grams from the recovered Heroin and sealed them separately and sent one sample for analysis which was found Heroin on analysis. Remaining Heroin were also sealed in a separate packet. A balance (taraju) and weights were also recovered from the place of seizure and were sealed. PW -1 Brijesh Kumar Dubey after making the recovery, prepared the recovery memo Exhibit Ka -1. He recorded the statement of the Appellant, which is on record as Exhibit Ka -4. He further recorded the statements of public witnesses Raju Prajapati and Nawab Hussain under Section 67 of the Act, who supported the story of recovery. Their statements are Exhibit ka -6 and ka -5, respectively. The Appellant denied the charge levelled against him and pleaded that he has been falsely implicated. The Appellant further stated that he was habitual of consuming Heroin so PW -1 Brijesh Kumar Dubey and his assistants knew him from before the occurrence. It was next stated that the Appellant had been arrested only on account of pressure of the persons involved in the business of sale and purchase of Heroin.
(3.) IN order to prove the charge, the prosecution examined PW1 Brijesh Kumar Dubey, the arresting officer, who has supported the entire prosecution story and proved the recovery of 276 grams of Heroin from the house of the Appellant. PW -2 Man Singh and PW -3 Yogesh Chandra Mishra are also witnesses of the recovery. They have also supported the prosecution story.;