RAJESH KESHARI Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard Sri Anshuman Vidhu Chandra and Sri A.P. Srivastava, learned counsels for the appellant and Sri Ashish Pandey, learned counsel for the opposite parties.

(2.) This criminal appeal is directed against the judgment and order dated 03.12.2009 passed by Additional Sessions Judge, Court N0. 2, Varanasi in Criminal Case/S.T No. 134/2007, Union of India vs. Rajesh Keshari, Case Crime No. 15 of 2006 convicting and sentencing the appellant to five years rigorous imprisonment along with fine of Rs. 50,000/- for committing offence under Section 8C/21(b) N.D.P.S. Act.

(3.) The brief facts of the case are that a complaint was filed against the appellant on 18.06.2007 by the complainant, S.K. Singh, Intelligence Officer, Narcotics Control Bureau, Lucknow stating that information from reliable sources were received on 29.12.2006 that appellant is going to supply heavy quantity of heroin to one Sunil Gupta on 29.12.2006 at 22:00 hours at Birdopur Road, Badi Gaubi, Varanasi; that after noting the aforesaid information and intimating the Senior Officers, a team of Narcotics Control Bureau (hereinafter referred to as 'N.C.B'), Varanasi headed by Sri Sanjay Tiwari, Sri S.N. Visht and Jirendra Singh, all Intelligence Officers and S.N. Mapwal was constituted for the purpose of preventing the aforesaid delivery of heroin; that the team reached at Birdopur Road at 21:30 hours on 29.12.2006 and contacted two persons standing there, namely, Kamal Kumar Pandey son of Madan Mohan Pandey, resident of B-19/18, Rewdi Talab, Police Station- Bhelupur, District- Varanasi and Sunil son of Nand Lal resident of Chandpur, Collectory Farm, Police Station- Manduadih, District- Varanasi; that the team gave its introduction and the secret information received and asked them to become independent witness which they accepted and when the appellant came on the spot at 22:00 hours he was intercepted and he informed his name as Rajesh Keshari son of Kishan Keshari, resident of N-16/14, Badi Gaubi, Police Station- Bhelupur, District- Varanasi; that the team gave its introduction and also that of the two independent witnesses and informed the appellant that he has legal right to be searched before a Gazetted Officer or Magistrate; that the appellant did not accepted the offer and refused the same in writing and gave consent to the team members to search him; that he was also given option to search the team members and the independent witnesses before they conducted his search but it was also refused by the appellant; that when the appellant was searched brown powder was found wrapped in a polythene in his undergarment and on being weighed it was found to be 600 gms in weight and appellant admitted it to be heroin which was given to him by Dipu Sinha, resident of Kabir Nagar, Varanasi for supply to Sunil Gupta, resident of Sukuladali Chowk, Varanasi; that because the sale, purchase, possession and transport of heroin is illegal under the provisions of Narcotic Drugs and Psychotropic Substances Act ("N.D.P.S. Act" in short) therefore it was confiscated and two samples of 5 gms. each were prepared in two polythene packets and sealed by the departmental seal and were marked as S.1 and S.2; that the remaining heroin was kept in big polythene bag and hot sealed and kept in a markin cloth and departmental seal was put over the same; that thereafter the appellant, independent witnesses and the members of the team made signatures over the sealed packets and recovery memo was prepared; that the statement of the appellant admitting his involvement in the trade of heroin and the statement of independent witnesses were recorded under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the appellant was arrested at 01.30 hours on 30.12.2006.