SALIM @ FAKHEERA Vs. STATE OF U P

JUDGEMENT

(1.) This criminal appeal has been filed against the judgment and order dated 27.3.2008 passed by Sri S.K. Agrawal the then Addl. Sessions Judge, Court No.3, Moradabad in Sessions Trial No.17 of 2007, State vs. Salim and another, under Section 8/22 of the NDPS Act P.S. Bhagatpur District Moradabad whereby the accused appellant Salim @ Fakheera has been convicted and sentenced to undergo 14 years rigorous imprisonment and to pay a fine of Rs. 1,25,000/-. It was also directed that in default of payment of fine the accused appellant will have to further undergo 3 years' rigorous imprisonment.

(2.) The prosecution case, in nutshell, is this that on 27.11.2006 S.H.O. Rajendra Singh along with other police personnel was busy in search of wanted criminals. When the police party were coming from Chowki Manpur towards Tanda at Moradabad Tanda road and as soon as the police reached at Thilia Tiraha, two persons standing there got nervous seeing the police jeep and they started running fast. The police on being suspicious asked to stop them but they did not stop, then the police caught both of them at about 6 p.m. from the pakka road going towards Thilia Tirahe at the distance of 40-50 paces and asked the reasons for not their stopping, they told that they were having brown sugar (smack). On being asked their name and address a person disclosed his name as Saleem @ Fakheera and another disclosed his name as Irshad Hussain @ Mulla. The police party told both of them that since they were having brown sugar (smack), so they have right to get themselves searched before Gazetted Officer or Magistrate. Both the accused opted their search by SHO Rajendra Singh himself. Accordingly search was conducted. From the possession of accused appellant Saleem @ Fakheera 400 gm granular powder of beige colour in a polythene from the right packet of his jacket and from the possession of co-accused Irshad Hussain @ Mulla 400 gm powder of brown colour in a polythene from the left packet of his jacket were recovered. The substance was smelt and it was found to be brown sugar (smack). The accused appellant and co-accused Irshad Hussain @ Mulla Ji were arrested for possessing unlawful smack. After taking sample of about 50-50 gm powder from each packet of recovered smack, the same was packed and sealed on the spot. Both the appellants were taken into custody and were brought to the police station, where a case was registered against them. After completing the investigation charge sheet was filed against the accused appellant and co-accused Irshad Hussain @ Mulla Ji under Section 8/22 of the NDPS Act.

(3.) The trial court framed the charge against the accused appellant and co-accused under Section 8/22 of the NDPS Act. The accused pleaded not guilty to the charge and claimed to be tried.