ARVIND DUBEY Vs. STATE OF U P

JUDGEMENT

(1.) This jail appeal has been preferred against the judgment and order dated 29.09.2014, passed by the Additional Sessions Judge, Court No.4, District Maharajganj in S.S.T. No.17 of 2005 (State Vs. Arvind Dubey) arising out of Case Crime No.155 of 2005, whereby the accused-appellant has been awarded punishment under Section 8/20/23 of NDPS Act, P.S. Parsamalik, District Maharajgang of three and half years' R.I., fine of Rs.10,000/- and in default of payment of fine two months' additional imprisonment.

(2.) The facts in brief of this case are as follows:

(3.) The first informant S.O., Bachchoolal Chaudhary, Officer-in-Charge, P.S. Parsamalik alongwith his teammates Sri Mahendra Kumar (PW-1) and Constable Sri Dinesh Chandra Yadav (PW-2) were busy in maintenance of law and order duty on 22.04.2005. When they reached near Tiraha Parsa Tola, they found accused coming from the way which led to Nepal. When they signalled him to stop, he accelerated his motorcycle, but the police party arrested him at 13:30 hours about 50 steps away from that Tiraha. When enquired, he disclosed his name to be Arvind Dubey. He was searched on the spot and was found in possession of a countrymade pistol of .315 bore and a live cartridge of .315 bore. When he was asked about the substance which was kept in dicky of his motorcycle (UP 56 A/6539, Chesis No.DMFBKJ 85028 and Engine No.DMMBKJ 86359), he told that it was Charas. In compliance with the provisions of Section 50 of NDPS Act, he was apprised that the search of Charas/his motorcycle could be made before a Magistrate/Gazetted Officer, if he so wanted, but stated that since he had already been caught, hence the police party could take his search and gave written consent in this regard which is Ex. Ka-1. The recovery memo was prepared on the spot and after the search being made, 500 grams of Nepali Charas, packed in polythene, wrapped in two packets, kept in dicky of the motorcycle was recovered. Thereafter the accused was apprised that he had committed an offence punishable under Section 3/25 of Arms Act and 8/20/23 of NDPS Act and was taken into custody. A sample of 50 grams of Charas, recovered from him was taken and was packed in a plastic and was separately sealed; sample of seal was taken. The remaining contraband (Charas) contained in two plastic bags was kept in plastic and was packed in a cloth separately and sealed properly. The sample of seal was also prepared. Because the place of occurrence was a lonely place, no public witness could be found. The recovery memo was signed by all the police officials and the signature of the accused was also obtained thereon. A copy of the said recovery memo (Ex. Ka-2) was provided to the accused.