Dinesh Kumar Singh, J. - (1.) The accused appellant has preferred this Appeal against the judgment and order dated 20.09.2005 passed by the Additional Sessions Judge/ Fast Track Court No.6, Banda in Special Sessions Trial No. 34 of 2005 (State Vs. Kaushal Kishore @ Belan) whereby the accused has been awarded punishment under Section 22 of N.D.P.S. Act with 10 years R.I. and fine of Rs. 1,000,00/- and in default of payment of fine to undergo S.I. For six months.
(2.) Brief facts of the case are as follows: On 17.02.2005, S.I., Ram Avatar Shankwar (P.W.1) along with his other team of police personnel was returning from law and order duty. As soon as he reached near Kacchi road leading to village Ichawar, the accused was found in suspicious circumstances believing that he was a suspect, he was tried to be stopped but when he ran away, he was arrested at 07.45 p.m. by the police force. On enquiry, he revealed his name Kaushal Kishore @ Belan and stated that because he was possessing smack, he tried to ran away. He was apprised that he could opt to be searched in presence of the Gazetted Officer/ Magistrate but he declined for search to be made in front of such an officer and consented to be searched by the police party itself. Thereafter, written consent was taken of the accused for being searched by the police party after assuring him that none of the police personnel possessed any illegal item. Upon search being made, 10 gram Smack was recovered from his left pocket of the pant. He could not show any license of possessing the smack. The said smack was sealed on the spot and sample of its seal was prepared. The case was registered as case crime No 23 of 2005 under Section 18/20 N.D.P.S. Act at P.S. Pailani, District Banda. The recovery memo, prepared on the spot, is Exhibit Ka-1. On the basis of said recovery memo, the chik F.I.R. was prepared at the police station, which is Exhibit Ka-6. The entry of the case crime No was made in G.D. No. 34 dated 17.02.2005, Exhibit Ka-7. The consent by the accused not to be searched in presence of the Gazetted Officer is Exhibit Ka-2. The warrant of arrest, information of arrest sent to the District Legal Services Authority and the examination of the accused are Exhibit Ka-3, Ka-4 and Exhibit Ka-5 respectively. The investigation was made by S.I. Sri. Kamta Prasad Tripathi (P.W.4) initially and thereafter it was handed over to S.I. Shri P.L. Rawat (P.W.5) who has prepared the site plan Exhibit Ka-8 and after taking statement of all the witnesses, submitted the charge-sheet Exhibit Ka-9 under Section 18/20 of N.D.P.S. Act.
(3.) Learned counsel for the appellant has confined his arguments to the quantum of punishment. According to him, for recovery of 10 gram of smack (heroin) accused- appellant has been awarded 10 years rigorous imprisonment and rupees one lakh fine and in default of payment of fine further 6 months simple imprisonment, which is very harsh punishment and the same needs to be reduced particularly the fine imposed because the accused comes from a poor family. On merits of the case he has not touched any point.;