ASHOK Vs. STATE OF U. P.

JUDGEMENT

(1.) This appeal, under Section 374(2) of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.'), has been filed by Ashok, convict appellant, against the judgment of conviction and sentence made therein, dated 17.2.2012, passed by Court of Additional Sessions Judge, Court No. 5/Special Judge, Agra, in Special Sessions Trial No. 62 of 2005, arising out of Case Crime No. 401 of 2004, State Vs. Ashok, under Section 21 of N.D.P.S. Act (hereinafter referred to as 'Act'), Police Station Jagdishpura, District Agra, wherein convict-appellant Ashok Kumarhas been convicted for offence punishable under Section 21 of Act and has been sentenced with rigorous imprisonment of ten years and fine of Rs. 1 lac and in default two years additional rigorous imprisonment with a direction for adjustment of previous incarceration in this very case crime number, with this contention that trial Court failed to appreciate facts and law placed before it. Police arrested convict appellant from his house on 5.11.2004, for which instant telegram, complaining fact of arrest from home, to higher authorities, was sent by his wife and mother on 5-6.11.2004. Thereafter, police challened appellant on 7.11.2004 with accusation of recovery of 800 gms. of 'Heroin' from his possession whereas no such recovery was there nor prosecution could prove its case beyond doubt. But trial Court failed to appreciate facts and law, thereby, passed impugned judgment of conviction for offence punishable under Section 21 of Act. A sentence, as above, was passed, which was excessive and deterrent. There was no compliance of provision of Section 42 of the Act. The alleged place of recovery was from busy place, with a lot of rush in that area but no public witness was taken in alleged recovery memo or First Information Report. No compliance of Section 50 of Act was made. Hence, this appeal, with prayer for setting aside the impugned judgment and sentence, made in it.

(2.) From the very perusal of impugned judgment and record of trial Court, it is apparent that First Information Report (Ex.Ka-2) was got lodged at Police Station Jagdishpura for offence punishable under Section 8/22 of Act, against Ashok KumarSingh son of Om Prakash Thakur, resident of 27/166 Teela Gokulpura, P.S. Lohamandi, District Agra, the then residing at House No. 271, Puspanjali Colony, Dayal Bagh, P.S. New Agra, District Agra. On 7.11.2004 at 17:00 P.M., on the basis of recovery memo (Ex. Ka-6), prepared by Station Officer Manoj Kumar Mishra, Police Station Jagdishpura, District Agra, having mention that on 7.11.2004, S.O. Manoj Kumar Mishra, along with his police team, including Sub-Inspector Pratap Singh, Sub-Inspector Bhavar Singh, Constable Devendra Kumar and Constable Arvind Kumar, by Government jeep registration No. U.P.83 G-0007, with official driver Durga Prashad, vide G.D. Entry No. 30 at 12:10 P.M., was present in area of Bodla Avas Vikas Colony, Pratap Nagar and when team proceeded towards Awadhpuri road, one person who was under suspicious circumstances, ran towards back side. He was chased and was apprehended at 14:30 P.M. in the area of Mohalla Shanti Nagar. Upon query, he was Ashok Kumar Singh son of Om Prakash Thakur, resident as above and he confessed to be with possession of smack, for which he tried to run from spot. He was told for summoning some Gazetted Officer or Magistrate for his search but he refused and agreed to be searched by this team itself. Member of police team took their personal search and ensured that nothing incriminating is with any of them. Thenafter, personal search of Ashok Kumarwas conducted, in which a plastic bag having print "Novelty Matching Center" over it was recovered from his right hand, which was with two packets, wrapped in a newspaper and kept in a polythene, of smack with five small packets of same, wrapped in paper. This was with smell of 'Smack'. The two packets were also with smell of smack. Balance and weight, for weighing the same, were tried to be obtained from nearby. But as there were no shops nearby, hence, could not be available. Hence, it was weighed by keeping it over hand and was perceived to be of about 750 gms. In those five small packets about 50 gms. Upon query, accused confessed for sale of those smack in small packets, in which small packets were of pure smack and big two packets were with lesser concentration of smack, which was being sold to people. The recovered smack was kept in same wrapper and polythene. Thenafter wrapped in a clothe, stitched and sealed on spot; a specimen seal was prepared. Offence, punishable under Section 8/22 of N.D.P.S. Act was made, hence, he was taken in custody. Recovery memo was got scribed by Sub-Inspector Pratap Singh, under dictation of this informant. All members of team put their signature over it and accused, along with recovered articles and recovery memo, with specimen seal, was brought at police station. Where this case crime number was got registered. Investigation resulted submission of charge-sheet for offence punishable under Section 8/21 of N.D.P.S. Act. Court of Special Judge N.D.P.S. Act, after hearing learned public prosecutor and learned counsel for defence, vide order dated 15.9.2006, levelled charge against Ashok Kumarfor offence punishable under Section 8/21 of N.D.P.S. Act, for alleged recovery of 800 gms. of smack (heroin) at 14:30 P.M. Of 7.11.2004 from Mohalla Shanti Nagar within the area of Police Station Jagdishpura, District Agra. Charge was read over and explained to accused. Who pleaded not guilty and claimed for trial.

(3.) Prosecution examined PW-1 Constable-clerk Pratap Singh, PW-2 Constable Brijesh Kumar, PW-3 Sub-Inspector Manoj Kumar Mishra, PW-4 Constable Pratap Singh Rana, PW-5 Chauthiram Yadav, PW-6 Sub-Inspector Chandra Bhushan.