ROSHAN AND ANOTHER Vs. STATE OF U.P.

JUDGEMENT

(1.) Roshan and Hakeem Ullah have filed this appeal against the judgment and order dated 23.9.1999 passed by Special Judge, B.C. Act, Basti in Special Case No. 27 of 1995 convicting the appellant Roshan under Sec. 23 of the Narcotic Drugs and Psychotropic Substances, Act, 1985, hereinafter referred to as "the Act" and sentencing him 15 years R.I. and fine of Rs. one lac. The appellant Hakeem Ullah was convicted under Sec. 20 (b) (2) of the Act and sentenced to five years R.I. and fine of Rs. 20,000.00.

(2.) Heard Sri D.S. Misra and Syed Wajid Ali, learned Counsel for the appellants and learned A.G.A. Perused the Lower Court record. Both the appeals are connected. They are related to the same time and arrest of the appellants. Same question of law and evidence involved and they are being disposed of by a common judgment. Appellants Roshan and Hakeem Ullah were arrested by S.O. V.P. Shukla on 29.9.1987 and from possession of the appellant Roshan about 4 Kg. Charas and from the possession of Hakeem Ullah about 10 Kg. Ganja were said to have been recovered at about 7.30 p.m. for which a First Information Report was lodged against appellant Roshan in Crime No. 155 of 1987 under Sec. 20-B/23 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred as "the Act" and against appellant Hakeem Ullah in Crime No. 156 of 1987 under Sec. 20 (1) of the Act. According to the prosecution case on 29.9.1987 when P.W. 4, S.O. V.P. Shukla alongwith other police personnel were in patrolling duty at about 7.30 p.m. he saw two persons coming from the railway station. They were intercepted. They tried to run away. After few passes both were arrested. On being searched from the right hand of the appellant Roshan four bags containing about 4 kg. containing Charas were recovered and from the possession of the appellant Hakeem Ullah about 10 kg. Ganja were recovered. The sample were taken and contraband articles were seized and Fard recovery were prepared on the spot; a copy of which were given to the accused appellants. The appellants alongwith the contraband articles were brought to the police station. P.W. 3 Inspector Shivanand, after investigating the case, submitted charge-sheet against the accused appellants. Charge under Sec. 23 of the Act was framed against the appellant Roshan and under Sec. 20 (B) (1) of the Act against the appellant Hakim Ullah. Both have pleaded not guilty and stated that they have been falsely implicated ;.n this case on account of enmity. In defence they produced D.W. 1 Mohd. Habib Khan and D.W. 2 Neever @ Nand Kishor. The prosecution, in support of its case, examined P.W. 1 Islam, P.W. 2 Constable Paramhans Mall, P.W. 3 1.0. Shivanand Inspector and P.W. 4, the arresting officer V.P. Shukla. After recording the evidence, Special Judge, E.C. Act, Basti, by a common judgment, convicted the appellant Roshan under Sec. 23 of the Act and appellant Hakeem Ullah under Sec. 20 (b) (1) of the Act.

(3.) Learned Counsel for the appellant contended that the conviction of the appellant Roshan under Sec. 23 of the Act is against the evidence on record because there is no legal evidence that the contraband Charas was brought from Nepal. It is further contended by the learned Counsel for the appellants that the time of recovery is also doubtful and the public witness P.W. 1 has not supported the prosecution case, the conviction cannot be sustained on single testimony of police officer, P.W. 3 Shivanand is a second officer under the subordination of P.W. 4 V.P. Shukla, hence, the investigation is not fair. It is also contended that there is no link evidence and no compliance of Sec. 55 and Sec. 57 of the Act.