- (1.) APPELLANT Pandav Sarkar, has challenged his conviction under Section 20 (b)(ii)(c) N.D.P.S. Act (hereinafter referred to as the Act) and imposed sentences of 10 years R.I. with fine of Rs. one lac, the default sentence being two years further R.I. recorded by Additional Session's Judge, court No.5, Pilibhit, in S.S.T. No. 1 of 2000, State of U.P. Verses Pandav Sarkar, U/S Section 20 N.D.P.S. Act, PS Madho Tanda, in this appeal.
(2.) ACCORDING to prosecution allegations, S.I. Surendra Kumar Tyagi of Border Security Force along with constables Munesh Kumar and Khushhal Prasad were on routine beat petrol on 30.9.1999 and they left border out post Naujalia towards village Kutia Kavar and when they were proceeding on nature trail/ footpath (Pagdandi) then at 8.30 a.m., in between village Bodhi Bhur and Kutia Kavar, they witnessed a man approaching towards them from no man's land having a bag in his right hand. From a distance of hundred paces approaching person turned towards east and hide himself in the high bushes besides nature trail/ footpath(Pagdandi). Suspecting his manoeuvres S.I. and accompanying constables doubled up towards him and found him sitting in the bushes with a plastic bag carried in his hand. On interrogation by the picket party and asking reasons for his hiding that the person disclosed his identity as the appellant Pandav Sarkar S/O Jai Chand Sarkar, resident of Kutia Kavar, Naujalia No.2, P.S. Madhav Tanda, District Pilibhit and also disclosed that he was carrying Opium (charas) in his bag brought from Nepal for selling. On disclosure of possession of narcotic contraband apprehending party brought him on nature trail/footpath and there observed compliance of section 50 of the Act by intimating him that he had a right of being searched before a Gazetted Officer. Appellant however expressed confidence in the security forces and permitted them to search him. On search of the appellant from a plastic bag carried in his hand two polythene packets,of white and pink colours were recovered. In the white polythene packet, 34 sticks of black colour sticks and from the pink polythene packet, 35 sticks of black colour sticks were recovered. On smelling, those sticks were found to be Opium(Charas) approximately two Kgs in weight. Border security personnels also informed the appellant that if he desires his family members may be intimated about his arrest but that offer was declined by the appellant to save faux pas. Seizure memo Ex. Ka-1 was prepared, which was scribed by S.I. Surendra Kumar Tyagi and was got signed by the two constables Munesh Kumar and Khushhal Prasad. Intimating cause for his arrest, appellant was arrested at 11.30 A.M. The seized contraband narcotic was sealed in the same polythene and seal impression was prepared. No independent witness could be joined with the said recovery and seizure because of sudden search. From the scene of the incident/place of seizure, accused and petrol party came to police out post Naujalia and from there they came to police station Madhav Tanda were a FIR was got registered as crime no. 218 of 1999, under Section 20/23 N.D.P.S. Act the same day at 2.30 P.M. after covering a distance of twenty five kilometres. P.W. 3 clerk constable Geetam Singh of P.S. Madhav Tanda, on the basis of recovery memo Ex. K-1 prepared chik FIR Ex. K-2 and GD entry Ex. K-3. P.W. 5, S.I. Brij Pal Singh commenced investigation into the crime recorded statement of Munesh Kumar conducted spot inspection and prepared site plan Ex. Ka-6. He thereafter interrogated other witnesses and dispatched the drawn sample to the Forensic Science Laboratory, Agra. He has also proved Ex. Ka-7, which is the sample sending letter from S.P. Pilibhit to Forensic Science Laboratory, Agra dated 23.10.99. Further investigation was conducted by S.I. Hira Lal Chaudhary P.W. 4, who also proved Ex. Ka-4, which is analyst report from Forensic Science Laboratory. Concluding investigation,PW4 laid charge sheet Ex. Ka-5 against the appellant on 31.12.99 for offences under Section 20/23 N.D.P.S. Act. Sessions Judge, Pilibhit, on the basis of the charge sheet, took cognizance of the offence on 5.1.2000 and registered Special Session's Trial No.1 of 2000, State of U.P. Vs. Pandav Sarkar, which subsequently was transferred to the court of Special Judge, EC Act/ Additional Sessions Judge, Pilibhit, who after perusing material contained in the case diary, charged the appellant under Section 20 of NDPS Act on 7.7.2000, which charge was read out to the accused-appellant, who denied the same and claimed to be tried.
(3.) TO substantiate the charge and bring home appellant's guilt, prosecution in all examined six witnesses out of whom PW-1 Khushal Singh, PW-2 Inspector S.K. Tyagi were fact witnesses. PW-3 Constable Clerk Geetam Singh had registered FIR and had prepared Chik FIR, PW-4 is SI Hira Lal Chaudhary, second Investigating Officer, who had submitted charge sheet against the appellant, whereas PW-5, S.I. B.P. Singh is the first Investigating Officer who had proved site plan and Ext.Ka-7. PW-6 is Constable Anand Swaroop who had carried the sample to Forensic Science Laboratory. Report of forensic science laboratory is Ext. Ka-7. In his statement under Section 313 Cr.P.C., accused denied any recovery having being made from his possession and took the defence of his false implication. How ever he did not examine any defence witness. Additional Sessions Judge, court no.5, Pilibhit, vide its impugned judgement of conviction and sentence dated 30.10.2007 found the case of the prosecution established to the hilt beyond any shadow of doubt and, therefore, convicted the appellant under Section 8 read with Section 20 (b) (ii) (c) NDPS Act and sentenced him to undergo ten years RI with fine of Rs.1,00,000/- and in default of payment of fine, to undergo two years additional RI. Aggrieved by the aforesaid conviction and sentence, appellant has approached this Court in the instant appeal.;