JOG RAJ Vs. STATE OF U P

JUDGEMENT

(1.) The present criminal appeal has been preferred by the accused appellant Jograj challenging the order dated 05.06.2009 passed by Additional Sessions Judge, Court No.1, Pilibhit, in Special Trial No.63 of 2007 (State vs. Jograj) arising out of Case Crime No.1080 of 2007 u/s 8/18 Narcotics Drugs & Psychotropic Substances Act, 1985, Police Station Neuria, District Pilibhit, whereby the appellant has been convicted u/s 8/18 Narcotics Drugs & Psychotropic Substances Act, 1985 and has been sentenced for four years rigorous imprisonment and a fine of Rs.10,000/- and in default of payment of fine, for six months further imprisonment.

(2.) Heard Mr. R.B. Pal, Advocate holding brief of Mr. Ajay Kumar Kashyap, learned counsel for the appellant and Mr. Om Prakash Mishra, learned Additional Government Advocate as well as perused the record.

(3.) The prosecution case as narrated in the F.I.R. lodged by P.W.1 Sub-Inspector Gajram Singh is that on 22.08.2007, Sub-Inspector Gajram Singh along with Constable Ran Singh & Constable Kanhai Lal was busy in making enquiry about an application and was also on patrolling duty, during which when they reached Pilibhit road near village Gulhadiyan Dulhan, they received an input from police informer that one person sitting near the triangle of village Dhankuna is possessed with opium. Relying on this information, the police personnel made a search of each other to ensure that none of them were having any illegal substance and thereafter, proceeded towards triangle of village Dhankuna. They also tried to get independent witnesses, but no one came forward to become witness of search. When they reached near the triangle of village Dhankuna, the police informer pointed out the person who was having opium. As soon as the police personnel reached close to that person, he tried to run towards village Dhankuna, however the police personnel chased and apprehended him near the triangle of village Dhankuna at about 07:30 P.M. and upon being asked to disclose reason for his running away from the police, he confessed that he has opium in the polythene bag kept in his hand and that is why he ran on account of fear of his arrest. The P.W.1 informed him about his right to be searched in presence of a Gazetted Officer or before a Magistrate. But the arrested person reposed faith in police personnel and consented for being searched by them. On being asked, he disclosed his name to be Jograj and upon being searched, one green colored polythene, having therein another white polythene, was found in his right hand, wherein a black colored sticky substance smelling like opium was recovered. After weighing, the quantity of substance was found to be about 200 gms. Thereafter accused Jograj was arrested and was informed about the grounds for his arrest and the mandate of law regarding arrest and the instructions issued by Hon'ble Supreme Court and National Human Rights Commission regarding arrest and search were followed. The recovered substance was duly sealed and a memo was prepared and copy thereof was given to the accused after obtaining his thumb impression and thereafter, the arrested accused along with recovered substance was brought and detained in police station and on the basis of recovery memo and arrest memo, an F.I.R. was registered on 22.07.2007 at about 9:10 A.M. The entries of relevant facts were also made in the general diary of the police station. Thereafter during investigation, the sample of recovered substance was sent to forensic laboratory at Lucknow for its forensic examination and subsequently forensic report was received, wherein presence of opium was mentioned and percentage of morphine in the sample was found to be 2.8%. After completing investigation, a charge-sheet was submitted against the appellant u/s 8/18 Narcotics Drugs & Psychotropic Substances Act, 1985 (referred in short as NDPS Act hereinafter).