Prashant Kumar, J. - (1.) THIS appeal is directed against the judgment of conviction and order of sentence passed by the Sessions Judge -cum Special Judge, Pakur in Special Case No. 1 of 1998/ 01 of 2001 whereby and whereunder he convicted the appellant under Section 20(b)(ii)(a) of the Narcotic Drug and Psychotropic Substance Act, 1985 (hereinafter to be referred as N.D.P.S. Act) and sentenced him to undergo rigorous imprisonment for a period of one month.
(2.) THE case of prosecution, in short as per the fardbeyan of Maheshwar Singh, officer -in -charge, Pakur, is that he received an information that a criminal is standing by the side of a gumti in the market. On that information, he along with P.W. -3 and P.W. -4 went there and found that the appellant was slowly moving away from his gumti. It is stated that informant stopped him and made some query. It is stated that the activity of appellant was found suspicious, therefore, his gumti was searched by the informant and in course of search, ganja, kept in puriya (wrapped in folded paper) recovered from a small jhola (bag). Thereafter the appellant was arrested. Ganja was seized and seizure list prepared in presence of witnesses. On the basis of aforesaid information, Pakur (T) P.S. Case No. 77 of 1998 instituted under Section 20(b) of the NDPS Act and police took up investigation. After completing the investigation, charge -sheet submitted against the appellant under Section 20(b) of the NDPS Act and cognizance of the offence taken by learned court below vide order dated 30.06.1998. Thereafter court below framed and explained charge to the appellant under Section 20(b)(1)(a) of the NDPS Act, to which the appellant pleaded not guilty and claimed to be tried. Thereafter prosecution examined altogether 6 witnesses in support of its case. After close of the case of prosecution, statement of accused recorded under Section 313 of the Code of Criminal Procedure in which his defence is of total denial. Thereafter the appellant was convicted and sentenced as aforesaid, against that present appeal filed.
(3.) WHILE assailing the impugned judgment, it is submitted that the seizure of alleged ganja from the gumti of appellant has not been proved. It is submitted that both the seizure list witnesses i.e. P.W. -1 and P.W. -2 have categorically stated that nothing has been recovered in their presence. It is further submitted that P.W. -3, who is a betel shopkeeper, though has stated in his examination in chief that some paper puriya recovered from a jhola, but in his cross examination, he has stated that said jhola has not been recovered in his presence. It is further submitted that other 3 witnesses are police officers. It is submitted that their evidences are also contradictory to each other. P.W. -4 and P.W. -5 who accompanied the informant at the time of occurrence, had stated that from the gumti of appellant, numbers of puriyas kept in a jhola recovered. But the informant (P.W. -6) stated that only one puriya recovered. It is further submitted that all the witnesses stated that in the seizure list, they took the signature of appellant, but seizure list (Ext -3) reveals that signature of appellant was not obtained, which is in violation of Section 100(6) of the Code of Criminal Procedure. It is further submitted that appellant was arrested on 10.04.1998, but officer -in -charge of the police station (P.W. -6) and Investigating Officer (P.W. -4) has not reported the matter to their immediate superior officer, as provided under Section 57 of the N.D.P.S. Act, which casts a serious doubt on the prosecution case. Accordingly, it is submitted that impugned judgment cannot be sustained in this case.;