- (1.) Heard learned counsel for the appellant and learned AGA for the State. The appellant Amrendra Singh Kurmi has filed this criminal appeal against the judgment and order dated 13.6.1997 passed by Special Judge, Sonbhadra in Special Trial No. 43 of 1993, State v. Amrendra Singh Kurmi, convicting him under Section 20 of the N.D.P.S. Act and sentencing him to three years R.I. And a fine of Rs. 5000/- and in default of payment of fine further imprisonment of six months R.I. Briefly stated the prosecution case as narrated in the memorandum of arrest and seizure Ex. Ka-1 is that on 10.3.1993, S.O. M.P. Singh alongwith S.I. Ashok Kumar Rai and Sarvjeet Singh, Constables Awadh Narain Singh and Munni lal had departed from police out post Renukoot vide G.D. Entry No. 19 at 16.50 hours alongwith informer who had given information regarding the trafficking in illicit ganja to him. The police party comprising of the aforesaid personnel picked two public wit-nesses Gyan Prakash Singh and Gorakhnath Dubey while on way to the destination disclosed by the informant, namely, Quarter No. H-3/215 Hindalco Colony, Renukoot located on the second floor. When the aforesaid police party reached at the house in question, they noticed one man coming out from the quarter in question carrying light military coloured VIP suitcase in his hands. The informant gestured towards the police party and communicated that he was their man. The aforesaid man was nabbed forthwith by the members of the police raiding party alongwith the suitcase in the balcony of the quarter in question at 5.20 p.m. On interrogation he revealed his identity as Amrendra Singh Kurmi. He was searched in the presence of public witnesses Gyan Prakash Singh and Gorakhnath Dubey. The VIP suitcase which he was carrying with him in his right hand was found stuffed with illicit ganja total weight whereof was upon weighing with the scale procured from the grain shop of one Anil Kumar Rai was found to be 11 kgs. On demand made he could not produce any license to possess or for carrying ganja. He further stated that the ganja seized from him was delivered to him by one K.N. Pandey two days back for sale and the same was intended to be kept in the quarter in question but due to the absence of Shyam Narain, the owner of the quarter in question, the same could not be done. Since the conduct of the accused Amrendra Singh Kurmi came well within the mischief of Section 8/20 of the N.D.P.S. Act, he was taken into custody. He was afforded opportunity to have the C.O. summoned to the place of crime. He however pleaded that seizure of suit case containing ganja from his custody was real and that there was no necessity to call C.O. to the place of incident. The seized ganja was sealed in the suitcase itself and sample of the seal was retained. Memorandum of arrest and seizure was then prepared on the spot and copy thereof was supplied to the accused. The accused alongwith seized ganja was brought to P.S. Pipari at 19.20 hours on 10.3.1993 itself vide chik FIR Ex. Ka-2. On the basis of memorandum of arrest and seizure a case was registered against the appellant at P.S. Pipari under Section 8/20 of N.D.P.S. Act in the G.D. At serial No. 40 vide G.D. Extract Ka-3. Upon completion of investigation charge-sheet was submitted, by the Investigation Officer on 29.4.1993. The case was then sent up for trial to the Special Judge and numbered as special trial No. 43 of 1993. Charge under Section 20 of N.D.P.S. Act was framed against the appellant who pleaded not guilty and claimed to be tried. The prosecution produced memorandum of arrest and seizure Ex. Ka-1, Chik FIR Ex. Ka-2, G.D extract of registration of case Ex. Ka-3,. G.D. entry of departure of Sri M.P. Singh and constable Anurudh Singh from cop shop Pipari, Ex Ka-4, site plan Ex. Ka-5 and the chemical analysis report Ex. Ka-6, the suit case containing ganja was also produced as material Ex.-1. The accused appellant in his examination under Section 313 Cr.P.C refuted the prosecution case in its entirety and maintained that he lived in H-31, Hindalco Colony while one police constable posed at police out post Renukoot was residing in quarter H-200. He further disclosed that aforesaid constable decoyed him from his quarter in a white colour Ambassador Car to his quarter located on the second floor and requested him to lift the suitcase kept their and accompany him to the police out post. However when he refused to comply with his command, another cop lifted the said suitcase and kept in the vehicle in which he was also made to sit forcibly and taken to the police out post where his signature was forcibly obtained.
(2.) The prosecution produced S.I. Sarvjeet Singh as P.W.-1, Head Constable Manboh Singh Yadav as P.W.-2 and I.O. Purshottam Das as P.W.-3. Smt. Malti was examined as C.W.-1 and defense had produced Gyan Prakash as D.W.-1. Learned Special Judge after considering the entire facts and circumstances of the case and the evidence on record, both oral as well as documentary convicted the appellant and awarded him the aforesaid sentence.
(3.) Learned counsel for the appellant submitted that in the present case, the search and recovery was made in an enclosed place by the members of the police party who had admittedly previous information that the appellant was carrying on sale of illicit ganja in their quarter in question, their failure to comply in Section 42 of the N.D.P.S. has totally vitiated the appellant's conviction and sentence awarded to him.;