VIKRAM GIRI Vs. STATE

JUDGEMENT

(1.) Heard Sri Manish Tiwary, learned Amicus Curiae for the appellant Vikram Giri and Sri Saghir Ahmad, learned AGA for the State.

(2.) This jail appeal is directed against the judgement and order dated 27.05.2011 passed by Additional Sessions Judge (E.C.P.), Siddharth Nagar in Special Case No. 24 of 2008, State v. Vikram Giri under section 8/20, N.D.P.S. Act, 1985 (Case Crime No.358 of 2008), P.S.Dhebrua, District Siddharth Nagar by which the appellant has been convicted and sentenced to 10 years rigorous imprisonment and a fine of Rs. 1,00,000/and in default of payment of fine, additional imprisonment of 21/2 years.

(3.) Briefly stated, the facts of this case are that when informant B.K. Yadav, incharge Police Outpost Bharni, P.S.Dhebrua, District Siddharth Nagar, while going from Bharni towards Malgahiya within the territorial area of Police Outpost Bharni in connection with maintenance of law and order and preventing smuggling, reached the trisection of Dharuaar Uttari, he saw a man coming towards them from the north who on noticing the police personnel, turned around and started walking briskly. The police personnel asked him to stop but he did not listen to them on which they become suspicious and after chasing him for about 2530 paces, caught him at about 1830 hours. On being quizzed, he disclosed that his name was Vikram Giri, S/O Bhagwan Giri alias Ram Prasad Giri and he was resident of Mahuli, village Vishunpur, Ward No.4, P.S.Bahadurganj, District Kapilvastu, Nepal. When he was further quizzed about what he was carrying in the white coloured plastic bag which he held in his right hand, he confessed that it contained charas which he had obtained from Bahadurganj. On being informed that he can be searched before a Magistrate or a Gazetted Officer, he consented to be searched by the police personnel who had caught him. Since no one agreed to witness the search, the police personnel after searching each other, searched the appellant. The search of his white plastic bag lead to recovery of a brown coloured plastic bundle which the appellant confessed contained charas. The substance recovered from the appellant upon being weighed by a balance and weights which were arranged by Constable No.652 Pramod Singh from village Dharuaar, was found to be about 1 kg 150 gm. A sample of 100gm was drawn from the substance recovered from the appellant, packed in a white paper and then wrapped with a piece of white coloured terricot cloth and sealed on the spot. The remaining charas was packed and sealed in the same black coloured plastic bag. Two separate impressions of specimen seals were prepared on the spot. When the accused was required to produce the license for possessing charas, he admitted that he had no such license and begged to be forgiven. The appellant was informed that he had committed an offence under section 8/20 N.D.P.S. Act and thereafter, he was formally arrested. The memo of recovery of illicit charas from the appellant was written on the spot in the light of torch and signed by the appellant as well as the constable. Thereafter, the accused appellant was taken to the police station and locked in its lockup and the packet of substance recovered from him was deposited in the Malkhana. On the basis of the recovery memo (Ext.Ka.2), Case Crime No. 358 of 2008 under section 8/20 N.D.P.S. Act, was registered against the appellant. Check F.I.R. (Ext.Ka.8) and the relevant G.D. Entry vide rapat no. 36 on 23.06.2008, 2050 hours (Ext.Ka.9) were also prepared and the investigation of the case was entrusted to P.W.3 S.I. Ram Chandra Bharti, who after completing the investigation, submitted chargesheet (Ext.Ka.4) against the appellant under section 8/20 N.D.P.S. Act before the Sessions Judge, Siddharth Nagar which was registered as Special Case No. 24 of 2008. The sample of the substance recovered from the appellant was sent by S.I. Shohratgarh on 26.06.2008 to Joint Director, Forensic Lab, Mahanagar Lucknow for chemical examination, who forwarded his report dated 06.08.2008 to the trial court (Ext.Ka.11). Learned Sessions Judge, Siddharth Nagar took cognizance of the offences under section 8/20 N.D.P.S. Act on 19.07.2008 against the appellant and summoned him from District Jail. Copies of the documents on which the prosecution proposed to rely for proving its charge against the appellant were supplied to him. From the Court of Sessions Judge, Siddharth Nagar, the case was made over for trial to the Court of Additional Sessions Judge (E.C.P.), Siddharth Nagar who on the basis of the material on record and after hearing the prosecution and the appellant on the point of charge, framed charge against the appellant under section 8/20 N.D.P.S. Act.