MOHD. MUSTAFA Vs. STATE OF U.P.

JUDGEMENT

(1.) This Criminal Appeal under section 374(2) Code of Criminal Procedure has been preferred against the judgement and order dated 05.02.2013 passed by Additional District and Sessions Judge, Court No.3, Lucknow in Criminal Case No.185 of 2009 having Case Crime No.219 of 2009, under Sections 8/21 of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'), Police Station Ghazipur, District Lucknow, whereby the present appellant Mohd. Mustafa was convicted and sentenced under Section 21 (C), NDPS Act for 10 years rigorous imprisonment and a fine of Rs.01 lac and in default thereof additional imprisonment for six months.

(2.) The brief facts as set out in the first information report (Ext. Ka-2), based on recovery memo (Ext. Ka-1), are that on 01.03.2009 when SI, Ashish Kumar Singh (PW 1) was on patrol duty with Constable Kamlesh (PW 3) along with other police personnel, he got a secret information through an informer about a person coming with contraband articles on motorcycle. After believing the aforesaid information, SI Ashish Kumar contacted SI Shashi Kant Yadav, In-charge Police Outpost Munshi Pulia and SI Chandra Prakash Pandey, In-charge Police Outpost Khurram Nagar, Constable Wasihut Zama and Constable Ashok Singh through Mobile and asked them to join with his police force. They assembled and thereafter, made a search of each other to satisfy themselves that there is no incriminating article with any police personnel, they proceeded towards the Mazar of Bhullanshah at Lav-Kush Nagar Bandha and started waiting the person coming on motorcycle.

(3.) A person was seen coming on a red colour motorcycle from Nisatganj side by police party. The informant identified the person and left the place. The police party stopped the person coming on motorcycle. He tried to escape from the spot but the police personnel surrounded him and arrested on the spot at about 12.30 p.m. On the interrogation, he disclosed his name, parentage and address. Before making search of the person, he was asked about one Kg. contents of polythene bag kept inside upper inner garments (Baniyan), then he told that it is smack, which has been brought from Guddu of district Barabanki and he used to sale in different parts of the city. Thereafter, he also told that he was possessing psychotropic substance and his search may be made before the Magistrate or before the Gazetted Officer. Sub-Inspector Ashwani Kumar tried to contact the Circle Officer, Gomti Nagar on phone but due to congestion in network, he could not able to contact him. Thereafter, the accused himself stated to SI Aswani Kumar Singh that when you already arrested him, he has no objection if you take search. A consent memo to this affect has been prepared on the spot and thereafter his search was made. During search a polythene bag containing about one kilogram smack/ brown sugar was recovered. After making arrangement of the weight, the recovered article was found to be 1 kg. 25 grams on weight. A sample for chemical analysis has been taken of about 25 grams from the packet. After arrest, the appellant confessed his involvement in the other offences and recovery of some other articles relating to those offences was also made. Thereafter the contraband material and other articles were seized by the police and sealed in accordance with law in presence of the police personnel and appellant on failure to show any authority to keep it. The complainants of cases of theft and snatching was also called on spot and they identified the accused and confirmed the involvement of the accused appellant in other cases. After preparing the recovery memo, it was noted in the recovery memo that an effort was made to procure the public witness but nobody is ready to produce himself as witness of the incident. On the basis of the recovery memo, a case has been registered against the accused appellant in the General Diary of the Police Station (Ext. Ka-3) at 15.15 hours on 01.03.2009 under Sections 8/18/21, NDPS Act.