KAMLESH RAI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This appeal arises out of a judgment and order dated 20-8-1999, passed by Sri S.K. Gautam, I Additional Sessions Judge, Ghazipur, in Criminal Case No. 55 of 1991, convicting the appellant under Sections 8/21 of the N.D.P.S. Act and sentencing him to undergo 10 years R.I. and to pay a fine of Rs. 1 lac. In dafault of payment of fine, the appellant was directed to undergo further 2 years' R.I.

(2.) The brief of the case, according to F.I.R., are that the S.S.I. Shesh Nath Mishra while on petrol duty on 7-1-1991 reached the barrier, there he was met by S.I. Vachaspati Mishra and other police personnel. At that very time he received an information from an informer that a person would approach on foot the road for the side of village Baresar possession Heroin and would proceed towards Qasba Jamaniya Railway Station Bazar. He could be arrested if the police party takes immediate steps. The statement of the informer was recorded on a sheet of paper and the police party headed by S.S.I. Shesh Nath Mishra proceeded towards the road on which that person was to come. Two persons Guddu son of Najju Miyan, resident of Patkholivan. P.S. Jamaniya, and Shree Ram Sharma son of Ganesh Sharma, resident of Baresar, P.S. Jamaniya, district Ghazipur, were also taken by the police party as public witnesses before embarking upon the arrest of the appellant. They reached near a Gumti (roadside wooden shop) at 5.00 P.M. and hid themselves behind the same. After waiting for about half an hour, they saw a person approaching on foot. As soon as he reached in front of the Gumti, the informer pointed towards him. He was challenged by the police party. The appellant allegedly started to run back towards north. After a chase for about 15-20 steps, he was taken into custody near the culvert at about 5.30 P.M. On enquiry, he disclosed his name to be Kamlesh Rai. He also gave out his parentage and the residence. On being told by the police party that they had information of Heroin in his possession and his search is to be taken in this connection. He was further told that he could give his search to any Magistrate or any Gazetted Officer. The appellant allegedly told the police party to take his search itself. The search was conducted and from his shirts' left side chest pocket 5 gms. of Heroin was recovered. The pocket was cut off along with the packet in which Heroin was contained. After taking out 1 gm. each from the recovered Heroin it was sealed in two separate packets of plastic sheets. Rest of the Heroin was sealed separately in another packet. The specimen was prepared. He was brought to the police station along with the recovered narcotic article and was lodged in the lock-up. The recovery memo was also prepared at the spot. His signatures were obtained on the recovery memo also. After investigation by P.W. 6 S.I. J.P. Saroj a charge-sheet was submitted against the appellant.

(3.) The prosecution in support of its case has examined S.S.I. Shesh Nath Mishra as P.W. 1, Mohd. Gaffar as P.W. 2, Constable Ramashrey Singh as P.W. 3, Constable Nand Kishoreas P.W. 4, Head Constable Sheshmani Misra as P.W. 5, and S.I. J.P. Singh as P.W. 6. Out of these persons P.Ws 1, 2 and 3 are the witnesses of fact, P.W. 4 is the Constable who had carried the sample phial for chemical examination. P.W. 5 is the Head Moharir who had completed all the formalities pertaining to registration of the case. P.W. 6 is the Investigating Officer. He was posted at the same police station as a subordinate official to S.S.I. Shesh Nath Mishra, who was Incharge S.H.O. of the concerned police station on the date of incident.