ASHOK KUMAR GUPTA Vs. STATE OF U P

JUDGEMENT

(1.) THE pres ­ent appeal has been preferred by accused, Ashok Kumar Gupta against the judgment and order dated 7.2.1995 passed by Sri Vi -chitra Kumar, Vth Additional Sessions Judge in Criminal Case No. 960 of 1992 (State of LLPS v. Ashok Kumar) under section 21 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as N.D.P.S. Act), Police Station Sigra, District Varanasi convicting him under section 21 of the Narcotic Drugs & Psy ­chotropic Substances Act, 1985 and sen ­tencing him to undergo rigorous impris ­onment for 10 years and a fine of Rs. 1,00,000/ - (One Lac) and in default to un ­dergo rigorous imprisonment for a further period of 3 years.

(2.) BRIEFLY stated that the prosecution case is that on 7.8.1992 when the complain ­ant, S.I. Sri Dhananjay Mishra was on pa ­trol duty along with constable Sri Om Prakash Yadav and reached near Sajan Tiraha he met with S.I. Sri Triloki Nath Tripathi and constable Sri Pramod Rai. There he got information from the informer that one person is coming from the side of Agwan Baba Mandir, Lallapura for the pur ­pose of selling Heroin. Relying upon this information, the complainant tried to pro ­cure witnesses but could not succeed; Thereafter the police party proceeded fur ­ther along with informer and as soon as it reached near Varuna Hotel and turned to ­wards Lallapura, the informer pointed out towards a person; who was coming on road in front of Welvet Ice cream Factory. When the said person was challenged by the po ­lice party, he returned back towards Lal ­lapura but he was apprehended by the po ­lice party. On being enquired about the name and address and about the fact that there is information that he possessed Heroin and that would he like to be searched in front of a Gazetted Officer or a Magistrate, the accused disclosed his name as Ashok Kumar Gupta and he replied to the arresting officer that he may himself take search. On his personal search 52 sa ­chets of Heroin kept in a plastic bag was recovered from the right pocket of his pant. The reason for arrest was disclosed to the accused. The sample of the recovered Her ­oin was taken by the police and the same was kept in a container along with plastic bag and the container was sealed and sample of seal was prepared. The memo of recovery of Heroin (Ex -Ka -1) was prepared at the spot, which was got signed by the witnesses. On the basis of the said recovery memo Case Crime No. 328/1992 under section 8/21 of the N.D.P.S. Act. 1985, Po ­lice Station Sigra, district Varanasi was registered against the accused, Chick F.I.R. being Ex -Ka -2 and the copy of G.D. of reg ­istration of case being Ex. Ka -3 Investigat ­ing Officer inspected the spot and prepared the site plan Ex.Ka -4. The sample of the recovered contraband was taken to Scien ­tific Laboratory by constable Ram Ayodhya Singh in sealed condition. Test Report was received from the laboratory mentioning that the recovered contraband is Heroin. After the close of the investigation charge -sheet Ex. Ka. 5 was submitted against the appellant/accused.

(3.) IN order to prove its case prosecu ­tion examined 6 witnesses namely S.I. Dhananjay Misra -PW -1, Constable Om Prakash PW2, Constable Pramod Rai PW3, Constable Hanuman Singh PW4, S.I. Pushkar Pratap Singh PW5 and Ram Ayodhya Singh PW6 First informant. S.I Dhananjay Misra PW1, constable Om Prakash PW2 and constable Pramod Rai PW3 are the witnesses of recovery of Heroin from the accused. Witness constable Hanuman Singh PW4 is a formal witness, who has prepared chick F.I.R. (Ex.Ka -2) on the basis of recovery (memo) and G.D. registration of case (Ex.Ka -3) and has proved the same. S.I. Pushkar Pratap, PW5 is the Investiga ­tion Officer, who has prepared the site plan (Ex.Ka -4) and the charge -sheet (Ex.Ka -5) and has proved the same. Constable Ram Ayodhya Singh PW6 is the person who took the case property in sealed condition to the Scientific Laboratory at Lucknow.