RAM AUTAR SHIVHAREY Vs. STATE OF U.P

JUDGEMENT

(1.) Heard learned counsels for the appellants, learned A.G.A. for the State and perused the record of this appeal.

(2.) By way of instant criminal appeals, challenge has been made to the validity and sustainability of the judgment and order dtd. 30/8/2008 passed by Additional Sessions Judge (F.T.C. court no.2), Hamirpur in Special Case No.33 of 2003, State Vs. Ram Autar Shivharey and others, arising out of case , police station- Biwar, District- Hamirpur, whereby each of the appellants has been convicted and sentenced to undergo 10 years R.I. coupled with fine of Rs.1,00,000.00, with default stipulation to suffer additional rigorous imprisonment for one year for offence U/s 8/20 N.D.P.S. Act.

(3.) Facts relevant for adjudication of these appeals appear to be that S.I. Aditya Kumar Dwivedi P.W.2 lodged report on the basis of arrest and recovery memo, Exhibit Ka-1, at Police Station- Biwar, District- Hamirpur on 11/10/2003 at about 5.30 P.M. regarding recovery of 90 Kg. 'ganja' and arrest of four accused, who are the present appellants before this Court with averments that the informant- S.I. Aditya Kumar Dwivedi along with Incharge S.O.G., Constable Jai Prakash Maurya, Constable Raj Kumar, Constable Aftab Ali, Constable Acchey Lal were busy searching for the miscreants of Moolchandra Pal gang leader D-9 by his Government jeep UP 91 A 6665 with Constable Driver Mahendra Singh. When they arrived at village- Luhari from Village- Modaha, they received tip off information from some informer to the effect that sometime before few persons in Tata Sumo jeep have gone to Patanpur possessing 'ganja'- the contraband- and the same shall be unloaded at the house of Ram Autar Shivharey at Patanpur. The aforesaid police party tried to arrange for some public witness but no one was ready to become witness, therefore, the police party rushed towards Patanpur and the police jeep was parked in front of house of Jhandu Singh, when the informer pointed out the specific vehicle, which brought ganja; at the same time, all the police personnel including the informant saw one man standing by opening rear door of vehicle Tata Sumo and three persons were unloading bags. The three persons took out from the vehicle one bag each in their hand and proceeded towards the house, when the police party intercepted them near the main gate of the house at about 2 p.m. (on 11/10/2003) and also apprehended at the same time, the person, who had opened the rear door of the Tata Sumo vehicle. On being asked about their names, each of the appellants present spelled his name along with the parentage and addresses, whereupon, the police party asked that they have information that the accused are possessing contraband- ganja, therefore, in case, they opt for their search being made either by the police party or by some gazetted officer or a magistrate, whereupon, all the four accused agreed to be searched by the police party itself and consent memo was prepared, which is Exhibit Ka-2. Thereafter search was carried out, whereupon, one bag each was found in the hands of Ram Autar Shivharey, Pawan @ Raju and Neeraj Gupta weighing 30 kgs. each thus aggregating 90 Kgs. in all. At the same time accused- Shaheed told that he brought the ganja upto this place by the vehicle Tata Sumo and all the accused told that they have brought it from Ranikhet, Uttranchal and all the accused have business in partnership. On being asked about the license for possessing ganja, the accused could not show any authority or license to keep and possess ganja. All the four accused were formally arrested and a sample of 250 grams from each of the bag was taken out and the same was kept in a cloth and wrapped in a paper and sealed and the bags in which the ganja was recovered were also separately sealed. Arrest memo was prepared on the spot. The police party also took in its possession the vehicle used for conveying ganja numbered UP 78 Y 2786. The entire memorandum was written on memo recovery and arrest and signature of all the police personnel and the accused were obtained on it and each accused was given separate copy of the memo.