CHINKU GUPTA Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri Harish Chandra Tiwari, Amicus Curiae, Sri Deepak Mishra, Learned A.G.A. appearing for the State and perused the record.

(2.) This Criminal Jail Appeal No. 2811 of 2016 has been filed against the judgment and order dated 05.04.2016 passed by the Additional District and Sessions Judge, Fast Track Court No.1, Siddharth Nagar, in Special Sessions Trial No. 20 of 2014 (State Vs. Chinku Gupta), under Section 8/20 of NDPS Act, Crime No. 61 of 2014, Police Station Dhebarua, District Siddharth Nagar, whereby the appellant Chinku Gupta has been convicted under Section 8 read with section 20 of NDPS Act and awarded punishment of ten years rigorous imprisonment with a fine of Rs. 100,000/- and in default of payment of fine six months additional simple imprisonment.

(3.) The facts of the present case in brief are that on 11.02.2014, when S.I. Manoj Kumar Tripathi (PW1) was on patrol duty with his team-mates namely, constable no. 637 Ajay Kumar Gautam (PW5) along with other police officials of SSB and reached near Pachpedua trisection (Tiraha), one person who was standing near private bus stand just before railway crossing, saw the police party and all of sudden, he took reverse turn and started fleeing from there. Upon suspicion, the police party chased him and caught hold of him at about 50 steps from there; he revealed his name to be Chinku Gupta son of late Laxman Prasad Gupta resident of Ward no.6, Krishna Nagar, Police Station Kapilvastu in Nepal. When the reason for his fleeing was enquired, initially he started disclosing irrelevant things but thereafter, he stated that he was having 'Charas' in his possession and, therefore, due to apprehension he had tried to flee from there after seeing the police party. After having come to know that he was having narcotic substance, he was apprised about his right that if he wanted to be searched in presence of a Magistrate or a Gazetted Officer, such an Officer would be called by them. At this, he stated that since he has already been arrested, therefore, there was no need to call any such officer and that he was ready to be searched by them only. Thereafter, after having made search of each other and having obtained written consent (Exhibit Ka-2) from the accused, a personal search was made of the accused, pursuant to which four bundles of charas were recovered in 'Panni' from the 'Phet' of his pant. The weighing machine was arranged for taking weight of the contraband substance and it was found to be 2 kg in weight. He disclosed that the said charas was purchased from Krishna Nagar in Nepal and the same was required to be sold to the person who was to reach near bus stop, but he did not know his name. Thereafter, the police apprised the accused that he had committed an offence under Section 8/20 of NDPS Act and after having followed the directions of Human Rights Commission as well as Hon'ble Supreme Court, he was arrested at 18:00 hours in the evening. From the said recovered contraband substance--charas, 50 gms. was taken out by way of sample from one bundle, while rest of the bundles alongwith the bundle from which the sample was taken, were kept in one white cloth and were sealed on the spot and also sample of seal was taken. A large number of public persons has assembled there but when they were requested to be a witness of the said recovery, they proceeded ahead from there without disclosing their name. The recovery memo (Exhibit Ka-1) was prepared in the light of torch, which was got signed by all after having read out its contents to them and the information was also transmitted through proper channel to the house of accused about his arrest. Thereafter, the accused along with the recovered contraband substance were taken to the police station, where constable no. 449 Ajay Kumar Divedi (PW2) had written chick FIR the same day i.e. on 11.2.2014 on the basis of recovery memo which is Exhibit Ka-4 and made entry of the same in General Diary at report no. 30 at 21:15 hours which is Exhibit Ka-5. The investigation of this case was assigned to SHO Ramesh Yadav (PW3) who received all the relevant papers such as chick FIR, copy of General Diary, consent letter (Exhibit Ka-2) of the accused and after having recorded of the statements of PW1, PW2 and accused Chinku Gupta, he prepared site plan (Exhibit Ka-6). Further he got the sample of the contraband substance, sent to Forensic Science Laboratory for its examination and after having found the accused guilty, submitted charge-sheet (Exhibit Ka-8) against him under Section 8/20 of NDPS Act. Forensic Science Lab's report is Exhibit Ka-7, photocopy of Malkhana register is Exhibit Ka-1