SHERU Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) Present appeal is directed against the judgment and order dated 04.04.2011 passed by Special Judge (NDPS Act)/ 6th Additional Sessions Judge, Haridwar in Special Sessions Trial No. 15 of 2010 whereby appellant was held guilty for the offence punishable under Section 8/20 of NDPS Act and was sentenced to undergo 10 years rigorous imprisonment and to pay fine of Rs. 1,00,000/- and in default of making payment of fine, to undergo 1 year additional simple imprisonment under Section 8/20 of the NDPS Act.

(2.) Brief facts of the present case, inter alia, are that PW2 Senior Sub Inspector Dinesh Kumar along with Constable Rajvardhan, Constable Uttam Ramola, Constable Shashi Kant (PW1) and Constable Sushil Kumar left the police station on 27.12.2009 at 05.00 p.m. vide report no. 45 for maintaining law and order duty in the area; when police party reached near Laltarav Bridge, police informer passed on secret information to police party that one person standing near Hanuman Temple on Bilkeshwar Temple Road was having charas; believing on the information passed on by the police informer, police party searched each other and having satisfied that none of them was having any illegal thing /contraband, police party proceeded towards Bilkeshwar Temple Road along with informer; informer pointed out towards a man standing near Hanuman Temple and left the place, thereafter, police party tried to have independent public witness, however, none could agree to become independent witness; whereafter, police party proceeded towards the person standing on Hanuman Temple; seeing the police party, that man tried to escape but he was apprehended by the police party and on being asked, he disclosed his identity as appellant; appellant was made to understand his legal right that he could be searched in presence of a Gazetted Officer or a Magistrate, however, appellant told the police party that since the police party had apprehended him, therefore, police party could search him; having received such consent, he was searched by the police party and on search, it was found that appellant was carrying a blue colour polythene bag containing charas and in order to weigh the charas, so recovered, from the possession of the appellant, weighing scale was taken from one Fruit Vendor namely Pappu, son of Ram Pal, resident of Bengali Basti, Brahmpuri, District Haridwar, who was passing through along with his Rehdi (go-cart); on being weighed, charas was found to be of 1 kg.; out of 1 kg., 100 gm of charas was taken out as sample; sample, so taken, contraband, so recovered, were kept in a seal cover under the seal and signature of PW2 and thereafter, contraband, sample, sample seal and appellant were taken to police station and FIR was got registered.

(3.) Investigation was handed over to PW4 Rajendra Singh Aswal, who having investigated the matter, submitted charge-sheet against the appellant for the offence punishable under Section 8/20 of the NDPS Act. After committal of the case, trial court was pleased to frame charge against appellant for the offence punishable under Section 8/20 of the NDPS Act. Appellant denied the charges and claimed trial.