VINOD KUMAR YADAV Vs. STATE OF U.P.

JUDGEMENT

(1.) This criminal appeal has been preferred by the appellant Vinod Kumar Yadav, under section 374(2) of Code of Criminal Procedure, 1973 (For short Cr.P.C.) against the judgement and order dated 31.08.2010 passed by Additional District Judge/Fast Track Court-2, in Special S.T. No. 76 of 2008 (State v. Vinod Kumar Yadav) relating to case crime no. 747 of 2008, under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act (For Short NDPS Act) Police Station Kasya, District Kushinagar at Padrauna, whereby the appellant was convicted and sentenced under Section 8/20 of the NDPS Act with rigorous imprisonment of 15 years along with a fine of Rs. 1,50,000/-. In default he was to undergo two years of additional simple imprisonment.

(2.) Briefly stated, the prosecution story was that upon an information being received by the Special Operations Group (For short SOG) comprising Sub Inspector Ranvijay Kumar Singh, Constable Govind Agarwal, Constable Nagendra Yadav, Constable Anil Tiwari and Constable Dhananjay Rai on 17.07.2008 that certain criminals with illegal arms were crossing the Kasya Thana, reached the spot on a Jeep numbered U.P. 57G 0016 with a Driver-Laxman Prasad. Before proceeding to the site in question, the SOG informed the Thanadhyaksha, Kasya, Vinod Chandra Srivastava and reached the site at around 4.30 A.M. where supposedly the criminals were to reach. In the light of a torch, upon reaching the site, the SOG sighted the criminals, and ordered them to stop. However, with an intention to kill, the accused unsuccessfully fired upon the SOG personnel, who with alacrity arrested three out of the five who were present. They gave out their names as Vinod Kumar Yadav son of Natthu Yadav, Jai Kumar son of Adalat and Arvind Yadav son of late Baljeet Yadav, respectively. When Vinod Yadav was searched, then a black coloured bag was found hanging under his right shoulder, and upon being asked about it contents he revealed that it had charas which he had brought from Bihar and was taking to his hometown. The accused Vinod Kumar Yadav was apprised of his right to get himself searched by a Gazetted Officer but he was confident that Sub Inspector Ranvijay Kumar Singh would faithfully undertake the search and got himself searched by him. Upon being searched it was found the bag contained three yellow coloured plastic bags, which was charas in the form of rods. The accused guessed that the weight of charas recovered from him was about 3 Kgs. However, to get the exact weight, upon being directed by Sub Inspector Ranvijay Kumar Singh, Constable Govind Agarwal arranged for a weighing scale (Taraju) and the confiscated charas was found weighing 3 Kgs. Fifty grams of the confiscated charas was kept in a separate plastic bag as a sample was required to be sent to the laboratory. The remaining 2 Kgs. and 950 Gms. of the contraband was kept in a separate bag. Both plastic bags were separately kept. A copy of the recovery memo was prepared and was handed over to the accused-appellant. Thereafter, the case was got registered. Upon investigation, charge sheet was forwarded by the police to the Court, which framed charges under Sections 8/20 of the N.D.P.S. Act against the appellant Vinod Kumar Yadav. The appellant pleaded not guilty and asked for trial. The prosecution led its evidence. The witnesses were examined and cross-examined. Thereafter, the statement of the accused was recorded under section 313 of Cr.P.C., 1973 who denied carrying of the contraband and stated that the prosecution witnesses were not to believed. He further stated that the police had apprehended him from his house and that all the confiscation, which was shown of the contraband was in fact planted on him. After considering the case of the prosecution and the defence of the accused the Trial Court concluded that the appellant was in possession of 3 Kg. contraband (charas) and thereafter, sentenced him to undergo rigorous imprisonment for 15 years along with a fine of Rs. 1,50,000/- with the default Clause that in case of non payment of fine the appellant was to further undergo a simple imprisonment of two years.

(3.) Learned counsel for the appellant has submitted that there were such lapses on the part of the investigating agency that if they were properly analyzed they would render the conviction absolutely bad. He submitted:-