VIJAY LAKSHMI,J. - (1.) As both these appeals have been filed against the same impugned judgment dated 04.02.2011 passed by the Additional Sessions Judge F.T.C.-I in S.S.T. No. 39 of 2009 (State Versus Laxmi Kant and others) Sidharth Nagar, both are being disposed of by this common judgment. Aggrieved by their conviction under Section 20 of N.D.P.S. Act and sentence of 10 years Rigorous Imprisonment with fine of Rs. 1,20,000/- imposed on each of them, the appellants are before this Court by way of aforesaid appeals.
(2.) Heard Sri Ravindra Kumar Srivastava, Advocate on behalf of the appellants and learned A.G.A. representing the State. Perused the impugned judgment and lower Court's record.
(3.) The facts in brief are that on 14.09.2009 S.O.G. In-charge Dinesh Kumar Yadav alongwith some police officials was going towards Burdpur on patrol duty in order to check the smuggling, and as soon as he crossed the Kasba Navgarh, he received a secret information by police informer (Mukhbir) that two persons having charas with them are coming on a Hero Honda Motorcycle C.D. Don No. U.P.58B-7469 from Nepal. Believing on the secret information, S.O.G. Incharge Dinesh Kumar Yadav proceeded towards Burdpur and saw two persons coming on a Motorcycle. The informer after identifying them left the place. The police team tried to stop the motorcycle on which the appellants turned around their motorcycle and tried to run away, however, they were apprehended by the police team with great efforts. On being inquired, the person, who was driving the motorcycle told his name as Sanjay Pandey and the pillion rider disclosed his name as Lakshmi Kant @ Mangru Gupta. When they were asked about the reason for their running away, they informed that they had charas with them therefore, they were trying to run away. Both the accused were informed by the police team that as they have charas with them, they have the option to be searched before a gazetted officer, however, both of them opted to be searched by the police team itself and gave their written consent for this. Thereafter, the police officials conducted search of each other in order to rule out any possibility of having any contraband with them. During search of the appellants, Rs.150/- was found from Sanjay Pandey and from the possession of appellant Laxmi Kant Gupta @ Mangru Gupta, 338 pieces of charas (some in cylindrical and some in spherical shape) were recovered from the bag, he was carrying. A Sim Card and Mobile Phone was also rcovered from the possession of Laxmi Kant Gupta @ Mangru Gupta. The arrest memo (Ext. K-3) was prepared. The appellants confessed that they use to earn their livelihood by smuggling charas from Nepal. After this, they were arrested at 12.00 P.M. by the police team. The recovered contraband (charas) was weighed and it was found to be of 12 Kg, out of which 4 pieces, (two in cylindrical shape and two in spherical shape) were taken out as sample and were kept in a sealed container for sending it to the chemical examiner. Remaining charas was left in the same bag which was also sealed by the police and sample of the seal was prepared. Information was sent to the Superior Officers by mobile phone. At the time of the arrest of appellants, public witnesses had gathered on the spot but when they were asked to be a witness, they silently left the place. The motorcycle was taken into custody. The recovery memo (Ext. K-a) was prepared, copies whereof were given to the appellants. On the basis of aforesaid recovery memo, Case Crime No. 1492 of 2009 was registered against both the appellants at P.S. Sidharth Nagar and check report was prepared, which shows that the time of occurrence is 12.00 P.M. on 14.09.2009, the report has been lodged at 14.30 minutes on the same day and the distance between the place of occurrence and the police station is 06 kms. Charge under Sections 20 (b) (2) (c) (ii) of N.D.P.S. Act was framed against the both the appellants, who denied from the same and claimed their trial.;