AZAD Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Sri Madan Kumar Tiwari, learned counsel for the appellant and Sri Vikas Rana, Advocate brief holder on behalf of State.

(2.) This appeal under Section 374(2) Cr.P.C. has been preferred on behalf of the appellant against the judgement and order dated 18.11.2005 passed by Special Judge/Additional Sessions Judge, Aligarh in Criminal Case No. 116 of 2003 (State v. Azad) arising out of Case Crime No. 96 of 2003, Police Station-Kotwali, District- Aligarh whereby appellant has been convicted under Section 8/21 N.D.P.S. Act and awarded punishment of sentence already undergone in this offence and fine of Rs.700/- in default of payment of fine additional rigorous imprisonment of 15 days.

(3.) In brief the case of the prosecution is that on 26.09.2003, S.I. Mohd. Tahir (PW-3) was busy in patrolling duty alongwith Constable Balistar Singh in Bhojpura Bajar. When they were going towards Chowk Babu Khan, an informer informed them that one person namely Azad was standing on turn of the lane near Chowk who had smack in pouches (pudiyas). Believing on this information, the Police tried to find an independent witness but none was ready. After that having search of each other and having ensured that they had no illegal article with them, they reached near that person and asked his name, he told his name Azad. He was told by the Police party that they have got information that he had smack with him, therefore, if he wanted to be searched in presence of Magistrate or a Gazetted Officer, he could be taken there. He admitted that he had smack in Pudiyas with him and they could take his search. After his consent having obtained he was searched by S.I. Mohd. Tahir (PW-3) in presence of Constable Balistar Singh (PW-1) on spot and on his search 10 pouches (Pudiyas) of smack kept in a polythene were recovered from right pocket of the pant worn by him. He was informed with offence and arrested at 13.30 hours. The recovered smack was kept in a match box and sealed in a cloth on the spot and a sample seal was prepared. Recovery memo (Ext. Ka-1) was prepared on the spot and signature of the accused was taken on it, police personnel also signed on it and a copy was given to the accused, thereafter, they came to the police station along with the accused.