UMESHWAR PANDEY,J. - (1.) THIS jail appeal arises of the judgment and order of conviction and sentence dated 10 -8 -2001 passed by Special Judge (Narcotics), Ghazipur.
(2.) THE facts of the case are that on 31 -1 -1998, the Sub -Inspector of Police, Prem Chandra Misra (PW 3) alongwith constable Hira Lal Yadav and Narendra Kumar Singh was out on duty in connection with the investigation of a case within their circle searching for the accused of that case. He received an information through one police informer (Mukhbir) that a person was coming from village Rajdepur via Tulsiya Bridge. He would be carrying contraband heroin. The Police party on getting this information waited for the person to come and then appended him. After about 25 minutes, an young lad was seen coming on foot from the side of village Rajdepur. The police informer identified him and went away. The moment that boy arrived near the police party, he was commanded to stop at which he tried to escape but was chased and caught. The accused on inquiry from PW 3 disclosed his name as Irshad Ahmad alias Shekhu and also gave his address. Thereafter, the police party told him for his search and seizure as he was suspected of carrying heroin with him. PW 3 asked him that his search could be taken in presence of a Gazetted Officer or a Magistrate, who might be made available on the spot whereupon the accused appellant requested for his search to be taken by the police party present there. On the search of the accused, 6 gms. of heroin was found kept in his right pocket of the trouser which was seized and duly sealed on the spot after observing all the formalities. No witnesses of the public could be made available inspite of all efforts of the police party because the persons who were present, did not agree for the same. The recovery memo was prepared, a copy of which was given to the accused. He was brought to the police station alongwith seized contraband and on the basis of the recovery memo F.I.R. was lodged at 6.05 p.m. PW 3 gave information of this seizure and search through wireless set to his superior officers. The investigation of the case was conducted by the Sub - Inspector K.D. Rakesh, who recorded the statements of the witnesses, visited the spot of recovery and prepared its site plan. He also sent the recovered contraband for its chemical analysis to the laboratory at Lucknow under the orders of the Chief Judicial Magistrate, Ghazipur through constable Param Hans Shukla (PW 1). Thereafter, the Investigating Officer appeared and submitted the charge -sheet before the Court. The contraband articles sent to the chemical analyst, on due analysis, was found to be heroin and a report of the chemical analyst dated 7 -4 -1998 is Ext. Ka -7 on the record.
(3.) THE accused was accordingly charged and tried for the offence punishable under Section 21 read with Section 8 of NDPS Act (hereinafter referred to as the 'Act'). He pleaded not guilty to the charge and stated that he had been falsely implicated on account of the police keeping prejudices against him. He further stated that as he used to resort to different quarrels in his locality, the police had become prejudiced against him.;