LAWS(ALL)-2017-10-13

SHAMSUDDIN Vs. STATE OF U.P.

Decided On October 30, 2017
SHAMSUDDIN Appellant
V/S
STATE OF U.P. Respondents

JUDGEMENT

(1.) This appeal has been directed against the judgment and order dated 2/11/2015 of the Additional District and Sessions judge, Court No.7, Deoria passed in Criminal Case No. 21 of 2013, State of Uttar Pradesh vs. Shamshuddin, whereby the accused-appellant has been punished under Sec. 8 / 22 of the NDPS Act with rigorous imprisonment of 10 years and fine of Rs.1.00 lakh and in default of payment of fine with further rigorous imprisonment of 6 months.

(2.) In brief, the prosecution case is as follows.

(3.) On 18/7/2013 Shri Baijnath Singh, SHO, PS GRP, Railway Station Bhatni along with Constable Chandrika was busy in performing his duty of maintaining law and order at platform no. 1. At that very time, Constable Sahadev Dubey, Constable Brijendra Singh, Constable Baboo Ram Yadav, Constable Dharmendra Nayak and Constable Ajai Kumar of SOG, GRP, Gorakhpur also reached there and were discussing regarding criminals. All of them were proceeding towards western direction; they were told by informer that 2 persons were sitting on Railway platform No.1 at the western end who possessed Narcotic powder and could give effect to some offence of administering such drug/substance to public. Believing this information the police party departed towards western end of the platform No. 1 and just before 20 metres from the western end of the platform, the informant indicated them where those two persons were sitting and left the spot. The police party surrounded both these persons and arrested them at about 8.20 p.m. Upon being arrested, they disclosed their names to be Shamshuddin and Baijil Seliven and further apprised that they had alprazolam powder with them, which they used to administer to the travellers of train and upon their turning unconscious, they used to take away their belongings. Both the persons were apprised of their right that they could opt to be searched in front of a Magistrate or a Gazetted Officer. In response, they stated that they had already disclosed about the alprazolam powder being in their possession, hence the police party could take their search; they had no intention to be searched before any Magistrate or a Gazetted Officer as they were satisfied with the search to be made by them. Thus after taking their consent in writing (Exhibit Ka-1) and having searched themselves to ensure that they did not have any illegal article, they took search of Shamshuddin and found alprazolam powder from his pant's pocket which was rolled in a newspaper cutting. Baijil Seliven was also searched and from him also the same powder was recovered. Constable Chandrika was sent to bring a weighing machine from the nearby township and the recovered contraband was weighed separately. The quantity of powder recovered from Shamshuddin which turned out to be 140 grams while that recovered from other accused was 120 grams and they did not have any license to possess the same and pleaded to be excused. After being told that they had committed an offence under Sec. 8 / 21 of NDPS Act, both the accused were taken into police custody (arrest memo is Exhibit Ka-2) and the recovered contraband was separately sealed and the sample of seal was prepared. A large number of people had gathered on the spot, but none of them was ready to be a witness of this recovery. The memo of recovery (Exhibit Ka-4) was written by Constable Sahadev, which was read out to the accused and thereafter their signatures were obtained thereupon and a copy each of recovery memo was provided to them. An information to higher authorities was sent on the same day which is Exhibit Ka-3. On the basis of recovery memo Case Crime No. 84/2013 under sections 8 / 21 / 22 , NDPS Act was registered at PS, GRP against accused Shamshuddin on 18/7/2013 at 10:30 AM (Chick F.I.R. is Exhibit Ka-5). The entry of institution of this case was made in GD at report no. 19 at 10:30 AM (Exhibit Ka-6). The investigation was assigned to S.I. Shri Ashok Kumar (PW-4), who prepared the site plan (Exhibit Ka-7) at the instance of the first informant Baijnath Singh (PW-1) and after recording statements of other witnesses namely, Sahadev Dubey (PW-2), Ashok Kumar Jaiswal (PW-3), Ashok Kumar (PW-4) and taking into consideration the report of Forensic Science Lab (Exhibit Ka-9), submitted charge- sheet against the accused under sections 8/21/22 of NDPS Act (Exhibit Ka-8).