- (1.) ONKARESHWAR Bhatt, J. Appellant, Javed Ahmad, has preferred this appeal against judgment and order dated 22-4-1988 passed by the then Addl. Sessions Judge, Ghazipur in Sessions Trial No. 358 of 1987. The appellant had been convicted under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as the Act, and sentenced to ten years rigorous imprisonment and to pay a fine of Rupees one lac and in default of payment of fine to undergo further two years rigorous imprisonment.
(2.) SRI Rama Shanker Shukla, learned Counsel for the appellant and SRI G. S. Bisaria, learned A. G. A. appearing for the State, have been heard. According to the prosecution case, P. W. 1 Raj Narain Dubey was posted as Inspector of Police Station Kotwali Ghazipur. On 2-5-1987 he was returning alongwith Sub-Inspector Ram Naresh Singh P. W. 2, constables Hem Narain Singh and Daya Shanker Yadav after patrolling duty. When he reached near railway crossing near new vegetable market the Inspector saw the appellant coming from south to north. On seeing the police party he tried to run away, but he was apprehended when he could go only 25 paces. At that time Jokhu Yadav and Dina Nath Yadav came from the side of vegetable market and helped the police party in apprehending the appellant at 8 a. m. On personal search of the appellant 175 Grams heroin was recovered from the left side pocket of his pant which was kept in a plastic bag. The appellant could not show any licence to possess the contraband. The contraband was sealed on the spot and specimen seal was prepared. A recovery memo was also prepared by P. W. 2 Sub-Inspector Ram Naresh Singh on the direction of Inspector. Raj Narain Dubey. The appellant and the recovered contraband which was seized from possession of the appellant were brought at police station Kotwali where F. I. R. was lodged on 2-5-1987 at 9. 30 a. m. A case was registered and investigation took place. On analysis the seized contraband was found to be heroin. It is contended that Section 50 of the Act has not been complied with which vitiates the trial. The facts of the case show that apprehension of the appellant and recovery of the contraband from his possession took place without any prior information. The facts of the case show that Sub-Inspector Raj Narain Dubey without any prior information as contemplated under the provisions of the Act had arrested and searched the appellant in normal course of investigation into a suspected offence as provided under the provisions of the Code of Criminal Procedure and it was during that search that the contraband was found. In such a case Section 50 of the Act would not be attracted, as has been held in the case of State of Punjab v. Balbir Singh, 1995 (1) JIC 382 : 1994 Supreme Court Cases (Criminal) 634.
(3.) THE recovery of contraband from possession of the appellant has been stated by P. W. 1 Raj Narain Dubey and P. W. 2 Ram Naresh Singh, who happened to be police officials. Two witnesses of public, namely, Jokhu Yadav and Dina Nath Yadav have not been examined in this case. THE trial Court has found that these two witnesses were summoned. Summonses were served on them but they did not turn up. THE trial Court has also found that at the instance of the appellant also these two witnesses were summoned. THE material on record shows that the prosecution did make effort to examine the public witnesses. It is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be a police official. Nothing has come in the cross examination of P. W. 1 Raj Narain Dubey or P. W. 2 Ram Naresh Singh for discrediting their sworn testimony. THEy have fully supported the prosecution case regarding the apprehension, search and seizure of the contraband from (sic appellant ). It has come in evidence that the seized contraband was brought from the place of recovery and was deposited in the Malkhana of the police station. Triven Prasad P. W. 3 who has prepared chik F. I. R. of the case and registered the case in the general diary has stated that the contraband was deposited in the Malkhana of the police station in sealed condition. He has proved the relevant G. D. entry in that regard. He has also stated that on 20-5-1987 he had sent contraband for chemical analysis through constable Uma Kant Rai P. W. 5. Uma Kant Rai has stated that on 20-5-1987 he received the case property in a sealed condition and had also with him a covering letter of the Chief Judicial Magistrate, Ghazipur. He has further stated that he gave the article in sealed condition in the Laboratory at Lucknow and so long the article remained in his possession its seal was intact. Sub-Inspector Rajendra Singh P. W. 6, who is the Investigating Officer of this case, has stated that on 19-5-1987 he prepared a report for the Chief Judicial Magistrate, Ghazipur for sending the contraband for analysis. He has proved that report. The fact that the seized article was deposited in sealed condition in the Malkhana of the police station Kotwali has been stated by P. W. 4 Surendra Pratap Singh. The above evidence proves that the seized contraband was deposited in sealed condition in the Malkhana of the police station and in that very condition it was sent for analysis. The report of the Chemical Analyst shows that he received the article in sealed condition in accordance with the specimen seal. Link evidence in this case is therefore, complete and it shows that the very article which was seized was sent for chemical analysis and it was found heroin by the Chemical Analyst.;