- (1.) B. K. Sharma, J. This is an appeal against the judgment and order dated 22nd December, 1994 passed by Sri N. L. Agrawal, the then 1st Additional Sessions Judge, Banda in Special Case No. 22 of 1994, State v. Shri Ram, Police Station Atarra, district Banda whereby he con victed the accused-appellant Shri Ram of the offence under Sections 21 and 22, N. D. RS. Act and sentenced him to under go rigorous imprisonment for a period of ten years and also to pay a fine of Rs. 1, 00, 000 and in default of payment of fine, to suffer further rigorous imprisonment for two and half years as part of his substan tive sentence.
(2.) THE prosecution case, in brief, was that on 18-3-1994, S. I. Vijai Kumar Arya, Incharge of Out Post G. R. P. , Karvi, (P. W. 2) along with constable Sant Ram (P. W. 1) and other constables, was on train check ing and crime prevention duty at Railway Station Karvi and they were present on platform No. 1 that on the platform Vijai Kumar Arya S. I. received an information that one person was sitting on a bench possessing narcotic drugs near water tank towards West of canteen on the platform, that on this information, the police party came near the canteen at the railway sta tion; that the informer pointed out towards that person sitting on a bench alone; that the police party took personal search with each other and then came near the water-tank in the west of the canteen; that on seeing the police party, that person got up and started moving towards the West whereupon the police party sur rounded and arrested him on the spot at a distance of 20 paces from there on the said platform (platform No. 1) that it was 4. 15 p. m. ; that the person arrested was the ac cused-appellant Shri Ram. THE prosecu tion case further was that Vijai Kumar Arya, S. I. told the accused-appellant to get himself searched before a Gazetted officer whereupon he (accused- appellant) said that he has full confidence in him; that thereupon Vijai Kumar S. I. took a search of his body and found a strip of 8 tablets Seripax wrapped in white paper from the left pocket of his shirt and packet of bis cuits bearing Parle 'g' brand name which was found having some slightly pink and yellow in taxicating substance glued on it; that he demanded the licence from the accused-appellant for keeping this but he did not produce any licence, to that, he prepared the recovery memo of the recovered materials and then went to the police station and loged the accused-ap pellant in the lock-up of the police station and a case was registered. The recovered material was sent to the Forensic Science Laboratory, Agra for Chemical examination. The Joint Director of Laboratory found that these articles contained Oxizeepam. Consequently a charge- sheet was submitted. At the trial, the prosecution ex amined Sant Ram Constable (P. W. 1), Vijai Kumar Arya, then the S. I. (now Dy. S. P.) as P. W. 2. The necessary link evidence was placed on record and the Investigating Of ficer was also examined. The accused made the denial of the recovery. The learned Additional Sessions Judge believed the prosecution story and consequently con victed and sentenced the accused-appel lant as aforesaid.
(3.) HEARD Counsel for the parties. Before this Court, apart from chal lenging the finding of the learned Addi tional Sessions Judge on merits, the learned Counsel for the accused-appellant argued that there was violation of the man datory provision of Section 50 of the N. D. P. S. Act and consequently the alleged recovery of the contraband articles aforesaid cannot be used to sustain the conviction of the accused-appellant. The learned A. G. A. , on the other hand, laid great emphasis on the ocular evidence against the accused- appellant by pointing out that the police officer and the raiding party had absolutely no enmity against the accused- appellant; that the prosecution version was consistent throughout; that while in the cross-examination of Con stable Sant Ram (P. W. 1), the defence claim was that the accused-appellant was ar rested from his house from Atarra and was falsely implicated planting articles which were said to have been recovered. The defence case in the statement of the ac cused-appellant under Section 313, Cr. P. C. , was that he was arrested because he did not have any ticket with him and was falsely implicated. It is argued that the accused-appellant, thus admitted his ar rest at the platform on the date, time and place set up by the prosecution. He also claimed that there was compliance of the provision of Section 50of the N. D. P. S. Act. He further argued that even if there was any irregularity in the matter of search, the recovery as such cannot be held vitiated and that the recovery being established beyond any shadow of doubt, the convic tion of the accused-appellant ought to be maintained.;