- (1.) This jail appeal has been filed by Baboo Lal Behra and Bharat Behra against the judgment and order dated 27.1.2012 passed by Additional Sessions Judge, Court No.6, Agra in ST No.565/2009, State vs. Babu Lal Behra and another, under Section 8/20 of the NDPS Act P.S. Lohamandi District Agra whereby the accused appellants Baboo Lal Behra and Bharat Behra have been convicted and sentenced to undergo 15 years rigorous imprisonment and fine of Rs.1,50,000/- each under Section 8/20 of the NDPS Act. It was also directed that in default of payment of fine the accused appellants shall further undergo five years imprisonment.
(2.) Eschewing unnecessary details the prosecution case, in brief, is that on 22.4.2009 the then Incharge of P.S. Lohamandi Agra Sri R.P. Singh along with other police personnel was on patrolling duty for maintaining law and order. When he reached near Pachkuiyan crossing, some informer had given information to him that two persons were waiting for some conveyance in Mohalla Ashok Nagar Sindhi Colony near railway line in the garden of Chakleshwar Bhairav Nath Mandir and that they have Ganja in attache and bag. On believing this information and on taking mutual search the Incharge R.P. Singh along with the informer proceeded towards that place. They tried to take public witnesses from the way but none had become ready to be the witness to avoid any unnecessary ill-will of any person. So the police party reached the place pointed out by the informer. Thereafter the police party had caught hold both the persons along with the attache and bag. On being asked one of them had told his name as Baboo Lal Behra and another one had told his name as Bharat Behra. When they were asked about the attache and bag, they told that they were filled with Ganja. They had option to be searched before the gazetted officer or Magistrate but they refused and consented to be searched by the police party itself. In spite of that, the aforesaid Incharge of the police station tried to contact the Circle Officer and Additional City Magistrate but they could not be contacted because of being busy in the coming Lok Sabha election process. Hence with the consent of both the arrested persons, all the 5 attaches and 3 bags were opened and they found the polythene bags of Ganja therein. The recovered Ganja was weighed by the balance. The same was found 120 kg in toto. The samples of 1 kg Ganja were taken from the recovered contraband and the same was sealed and the residue contraband was also sealed. The sample seal was prepared. The recovery memo was also prepared on the spot. The copy of that memo was given to accused Baboo Lal Behra with the consent of another accused and thumb impression of both the accused was also affixed thereon. The said recovery memo is Ext.Ka.2.
(3.) On the basis of that recovery memo a case under Section 8/20 of the NDPS Act was got registered at P.S. Lohamandi, Agra. The check FIR is Ext.Ka.3 and the copy of the G.D. regarding registration of the case is Ext.Ka.4. After completing the investigation of the case charge sheet under Section 8/20 of the NDPS Act was filed against accused Baboo Lal Behra and Bharat Behra, which is Ext.Ka.7. The charge sheet was also filed against another co-accused Debu Godhiyar under Section 8/20 of the NDPS Act, which is Ext.Ka.8.;