CHINKU Vs. STATE OF U.P.

JUDGEMENT

(1.) This criminal appeal has been filed against the judgment and order dated 17.6.2008 passed by the Addl. Sessions Judge/Fast Track Court No. 2, Siddharth Nagar in Special Sessions Trial No. 7 of 2008, State v/s. Chinku, under Sec. 20(b)(ii)(C) of the NDPS Act P.S. Dhebarua District Siddharth Nagar whereby the Court below had convicted the accused -appellant under Sec. 20(b)(ii)(c) of the NDPS Act and sentenced him to undergo rigorous imprisonment for 12 years with a fine of Rs. 1,20,000/ -, in default of payment of which the accused -appellant has been directed to undergo further three years rigorous imprisonment. The prosecution case, in nutshell, is this that on 17.12.2007 the Incharge of SOG Amrendra Kumar Rai along with police personnel was busy in the search of doubtful criminals. They were present near the Inspection House in Qasba Barhni of District Siddharth Nagar. At that time the Incharge Amrendra Kumar Rai received information from some informer that two persons who belonged to Nepal are coming from Kishan Nagar Nepal with charas in bags and they are to deliver the said charas to a party near Barhni Cinema Hall. On believing this information the police party reached near Kabir Picture Palace in the jeep along with the informer and stood at the back door of the picture hall covering themselves behind something. After some time two persons were spotted coming from the side of station. After having pointed them the informer had slipped from there. As soon as those persons reached the back door of that picture hall they were arrested by the police party at 10.15 a.m. On being asked they told their name as Chinku (accused -appellant) and the second one told his name as Mohan Lala. They also told that they had charas in the bag and they had come there to deliver the same to a party belonging to Kanpur. Thereupon they were told that it is their right to be searched before any Gazetted Officer or Magistrate on which they stated that since they have been arrested by them, so they may be searched by them (police). The police party prepared their individual consent letter and thereafter they made search of the accused -appellant and co -accused Mohan Lala. On their search three bundles of charas were recovered from the plastic bag of brown colour which he was carrying in his hand. On being weighed, the weight of three bundles was found to be about 2 kg 500 gm. 2 -2 chappad (slabs) were found from the two bundles each and one chapad was found from the third bundle. Three samples of 35 -35 gm were taken from these three bundles and were separately sewed and sealed in a separate cloth and sample seal thereof was prepared. Three residuary charas packet were also sealed in the same bag (Jhola) and sample seal thereof was prepared. In the same way the charas allegedly recovered from co -accused Mohan Lala was taken and residuary thereof was also sealed. Thereafter the accused persons were arrested. No person of the public became ready to become the witness of this search and seizure. The higher officials were informed as regards the arrest of the accused persons by mobile phone. The recovery memo was prepared on the spot which is Ext.Ka.3. On the basis of that recovery memo FIR (Ext.Ka.12) was lodged in P.S. Dhebarua as Case Crime Nos. 682 and 683/2007. On that basis a case under Sec. 8/20 of the NDPS Act, 1985 was registered against the accused -appellant. An entry as regards the registration of the case was made in the General Diary, carbon copy of which is Ext.Ka.19.

(2.) The investigation of this case was conducted by S.I. Sri Brijesh Kumar Yadav who prepared the site plan of the spot (Ext.Ka.9) and sent the sample of the said contraband to Forensic Science Laboratory for analysis with the docket (Ext. Ka.10). Forensic Science Laboratory reports are Ext. Ka.15 and Ext. Ka.16. Ext. Ka.15 relates to the accused -appellant and Ext. Ka.16 relates to co -accused Mohan Lal. According to the Forensic Science Laboratory report, the sample of the contraband was found to be charas. After completing the investigation the Investigating Officer submitted the charge -sheet against the accused -appellant and co -accused Mohan Lal under Sec. 8/20 of the NDPS Act, which are Ext. Ka.13 and Ext. Ka.14.

(3.) The Trial Court framed the charges against the both the accused under Sec. 20(b)(ii)(c) of the NDPS Act. The accused pleaded not guilty to the charge and claimed to be tried.