SHIV SHANKER, J. - (1.) THIS criminal appeal has been preferred against the judgement and order dated 31.3.1995 passed by VI Addl. Sessions Judge, Ghaziabad in Sessions Trial No. 29 of 1993 convicting and sentencing the appellant to undergo 10 years R.I. and a fine of Rs. 1,00,000/-and in default of payment of fine to further undergo two and half years R.I. under section 22 of N.D.P.S. Act.
(2.) BRIEF facts arising out of this criminal appeal is that on 16.11.92, S.I. Sultan Singh (P.W.2) was returning after making enquiry of the application and stopped at Loni crossing where informer (Mukhbir) met with him and had given information to him that one person is likely to come from the side of railway station Loni having illegal smack, upon which he had tried to take the public witnesses but none was prepared to become a witness. Therefore, constable 2 C.P. Veersain and constable 1294 C. P. Omprakash were taken with him who were deputed on picket duty at Loni crossing. After giving information regarding the informer (Mukhbir) to them, search was taken amongst them. No illegal article was found in possession of any of them. Thereafter, all have proceeded along with informer and reached near the crossing situated at Banthala railway gate, where one person was seen at the crossing coming from front of them. The informer pointed out that he is the man who is having illegal smack. Thereafter the informer (Mukhbir) has returned. After seeing the police personnel, above person had turned and tried to run away fastly upon which he was challenged and he was apprehended at station road at about 8.30 P.M. at the distance of 20 steps from the said Tiraha. He has disclosed his name as Asfaq. Thereafter "Jamatalashi Rajpatrit Adhikari Ke Samaksh Chalkar Lene Ke Liye Kaha To Kahane Laga Ki Aap Hee Jamatalashi Le Len." Thereafter, 20 puriyas smack, wrapped in the packet were found in the right side pocket of his paint at his search. It was asked from him ,as to from where it has been received. He did not give any satisfactory reply. Thereafter, the recovered smacks were kept in white clothes in polythin (panni) and after sealing it, Fard Ext. Ka-1 was prepared in the torch light and electric light. Signature was obtained from the police official upon the Fard and its copy was given to the accused after obtaining his signature upon it. After taking accused and recovered contraband article, Fard was submitted in the concerned police station, where accused was put in the lock up and chick F.I.R. Ext. Ka- 4 was prepared and case under section 22/32 of N.D.P.S. Act was registered. Investigation of this case was entrusted to S.1. Sri Ram Sewak Upadhyaya (P. W.3). During the course of investigation, recovered contraband article was sent for chemical examination, from where chemical report was received. It reveals that heroin was found from the said contraband article. After completion of investigation, charge sheet Ext. Ka 3 was submitted against the accused above in the concerned court. Accused Asfaq above was charged for the offence under section 22/32 of N.D.P.S. Act who pleaded not guilty and claimed to be tried.
(3.) PROSECUTION examined three witnesses namely P.W.1 Veersain. He is fact witness who stated prosecution story and proved recovery memo Ext. Ka-1 and 20 puriyas smack.;