SATYA NARAYAN Vs. STATE

JUDGEMENT

(1.) THE appellant Satya Narayan has preferred this appeal against the judgment and order dated 12.12.2006, rendered by Mr. L.K. Rathi, 16th Additional Sessions Judge, Kanpur Nagar in Session Trial No. 49 of 2002, Statev. Satya Narayan, whereby the learned Additional Sessions Judge convicted and sen ­tenced the appellant under section 20 (b) (ii) (c) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'the Act') to undergo rigorous imprisonment often year and also to pay a fine of Rs. one lakh and in default of payment of fine to undergo addi ­tional imprisonment of one year.

(2.) ACCORDING to the prosecution story, in the night of 5/6 November, 2001, PW-1 R.K. Verma (Excise Inspector) was on patrolling duty along with Head Excise Constable Shakti Deen, Chandra Prakash Srivastava and Excise Constable Rajendra Pal and Hari Kishan. At about 12.00 in the night, a secret informer in ­formed him that certain persons were coming from Haldwani with ganja on bus. On this in ­formation, R.K. Verma Excise Inspector and aforesaid excise officials reached near Naramau Old Chungi and started search of roadways buses arriving there. At about 4.45 a.m. bus UP 026 - 6734 arrived there from Farrukhabad side. R.K. Verma, Excise Inspec ­tor checked the bus and noticed that two sus ­picious persons were sitting on the rear seat of the bus. On being asked, one of them namely, the appellant told his name, parents' name, name of his village, police station and district. The Excise Inspector informed him that if he wanted his search in the presence of a Magistrate or a Gazetted Officer, the Magis ­trate or the Gazetted officer would be called before the search but the appellant Satya Narayan declined to have searched out before a Magistrate or a Gazetted Officer and allowed the Excise Inspector to make the search him ­self. It is also alleged that the appellant had kept two briefcase beneath his seat, which were taken by the Excise Inspector in his pos ­session and on the search of both the brief ­case, contravened ganja was found therein. In one briefcase eleven kg. and in other brief ­case 12.5 kg. ganja was found. The appellant was also found in possession of a roadways bus ticket No. 4963427 (Exhibit Ka-2). The Excise Inspector prepared the recovery memo (Exhibit Ka-1) and obtained the signature of the bus conductor and driver thereon. The passengers, who were travelling in the bus, declined to become witnesses of the recov ­ery. The Excise Inspector took sample of ganja from both the briefcases and sealed them sepa ­rately. Both the briefcases along with ganja were also sealed on the spot. The Excise In ­spector delivered the sample of ganja as well as recovered ganja to PW-3 Jagmohan Shukla, who was incharge of the malkhana. The ac ­cused was produced on the next date before the Magistrate alongwith recovered ganja, who was remanded to the custody. The sample of ganja was sent to Forensic Science Labora ­tory, Lucknow for analysis through PW-4 Excise Constable Ram Milan. The Forensic Science Laboratory made chemical analysis of the sample of ganja, which was about 35 grams and arrived at the conclusion that the same was ganja and submitted its report Ex ­hibit Ka-5. It may also be mentioned that the Excise Inspector had informed in writing to his immediate senior officer (Assistant Excise. Commissioner, Enforcement), Kanpur on 6.11.2001 regarding the search and recovery of ganja from the appellant. A copy of the let ­ter sent to the Assistant Excise Commissioner is on record as Exhibit Ka-4. Mr. R.K. Verma, Excise Inspector filed charge-sheet (challani report), exhibit ka-7 against the appellant.

(3.) IN support of the charge, the prosecu ­tion examined as many as four witnesses. PW-1 R.K. Verma was the Excise Inspector who made the search. PW-2 Hari Kishan Excise Constable claims himself to be an eye-witness of the occurrence and was present at that time. These two witnesses have supported the story of the search and recovery of two briefcases containing 23.500 kg. ganja from the posses ­sion of the appellant. These two witnesses further proved the recovery memo (exhibit ka-1) and other relevant documents. PW-3 Jagmohan Shukla and PW-4 Constable Ram Milan are mere formal witnesses. PW-3 Jagmohan Shukla proved that the recovered ganja was deposited in the Malkhana in the sealed condition. PW-4 Constable Ram Milan proved that he had delivered the sealed sample of the recovered ganja for analysis to the Fo ­rensic Science Laboratory, Lucknow.