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TMI Blog2018 (10) TMI 1709X X X X Extracts X X X X X X X X Extracts X X X X ..... aspect, has been satisfactorily proved by Constable Shamsher Ahmad PW2. He has categorically stated that he obtained the sample from the police station and took the same to the Forensic Science Laboratory, Agra and entry of the same was noted in the General Diary of date 14.01.2007 at Serial No.16 at 8:20 hours. Similarly, the entry of return journey was also noted in the concerned General Diary at Serial No.29 of date 17.01.2007 at 2:50 p.m. He has categorically stated that the substance was taken in safe and sealed condition to the Forensic Science Laboratory and no tampering was made and it was so handed over at the Forensic Science Laboratory. Therefore, on the point of sampling of the contraband substance and safe conveyance, the testimony inspires confidence and there is nothing, which may create any doubt regarding noncompliance of mandatory provisions of the N.D.P.S. Act so as to render the same doubtful. The imposition of sentence for 15 years is justified and the same legal aspect has been rightly taken into account by the trial court while imposing sentence on the appellant - it cannot be said that the enhanced sentence is violative of the provisions of the N.D.P.S. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded after short chase by the informant around 6.40 A.M. along with the sack. On being inquired, he spelled his name Vijay Pandey s/o Gursharan Pandey, resident of Mohalla Sahukara Line Par, Gautiya, Police Station Puran Pur, District Pilibhit. When further asked that information has been received that he is possessing 'doda' in his sack, therefore, if he so wishes, the search may be conducted in the presence of a Magistrate or a Gazetted Officer, but accused Vijay Pandey told that his search may be conducted by them and he has no objection, whereupon, the search was made by the informant in the presence of the accompanying Constable. Thereafter, after search seven packets were recovered from inside the plastic sack. Weighing equipment was arranged by the informant and the recovered substance was weighed, then 21/ 2 kg. each substance was recovered from two green packets. On opening the same, it was found to be 'doda'. Similarily, from the yellow polythene packet1 kg. 'doda' and 2 kg. each 'doda' was also found into two separate yellow polythene packets. The total substance weighed 10 kgs. Since this act was covered under Section 18/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pared the site plant, Exhibit Ka4 and after completing the necessary formalities filed the charge sheet Exhibit Ka5 against the appellant. Statement of the accused was recorded under Section 313 Cr.P.C., wherein claim was raised that he has been falsely implicated in this case. He denied any recovery having been made from him. He submitted that he runs grocery shop near police outpost where police personnel used to buy articles on credit, when asked for payment, they felt offended and falsely implicated him in this false case of recovery. The accused did not lead any evidence in defence. The court below after considering the merit of the case recorded conviction for the charge under the aforesaid section of N.D.P.S. Act and passed the sentence of 15 years R.I. coupled with fine ₹ 1,50,000/with default stipulation to suffer additional rigorous imprisonment for three years. Resultantly, this appeal. The contention has been raised that there is no independent witness in support of the recovery of contrabanddoda powderfrom the possession of the accused. The recovery is vitiated on account of violation of mandat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recovered substance to be 'doda powder'. Also considered the rival submissions. The moot point that arises for adjudication of this appeal relates to fact whether the prosecution has been able to establish the charge beyond reasonable doubt against the accused? Upon careful scrutiny of the record, the testimony adduced and particularly the documents on record and the very foundation of the casethe fact of arrest and the recovery, memoExt. Ka1, it is reflected that on 22.12.2006, S.I. Sri J.P. Singh PariharPW1the informant accompanied by constable Prahlad Singh were on duty in search of wanted criminals, when they received tip off information around 6:10 a.m. through an informer that Vijay Pandey s/o Gursharan Pandey, resident of MohallaSahukara Line Par, Gautiya, Police StationPuranpur, DistrictPilibhit is in possession of doda powder and is about to convey some destination and in case quick action is taken, he can be apprehended. Acting on this information, S.I. Sri J.P. Singh Parihar tried to arrange public witness, but no one was willing for being a witness. Therefore, the informant along with Constable Prahlad Singh and the info ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, the prosecution produced witnesses of fact PW1 S.I. Sri J.P. Singh Parihar and PW3 Constable Prahlad Singh. Both witnesses of facts have been cross examined on vital aspects of recovery regarding sealing of the contraband of the recovered substance on the spot and the answer given are found to be satisfactorily giving credence to the fact of recovery and arrest of the accused on the spot around 6:40 a.m. on 22.12.2006. Contention has been raised that there is violation of Section-50 of the N.D.P.S. Act. Obviously, after tip off information was received, the very same day on 22.12.2006 around 6:10 a.m., the possibility was expressed that in case, quick action is taken, accused can be apprehended, otherwise he is likely to move away with the contraband. S.I. J.P. Singh PariharPW1 tried to arrange public witness, but no one was ready to stand witness to the fact of recovery. The informant S.I. J.P. Singh PariharP. W.1 rushed to the spot without any delay, and after the house of the accused was pointed out by the informer bothJ. P. Singh PariharPW1 and Constable Prahlad Singh reached to the house where they sighted one person holding in his hand a white ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entry of the same was noted in the General Diary of date 14.01.2007 at Serial No.16 at 8:20 hours. Similarly, the entry of return journey was also noted in the concerned General Diary at Serial No.29 of date 17.01.2007 at 2:50 p.m. He has categorically stated that the substance was taken in safe and sealed condition to the Forensic Science Laboratory and no tampering was made and it was so handed over at the Forensic Science Laboratory. Therefore, on the point of sampling of the contraband substance and safe conveyance, the testimony inspires confidence and there is nothing, which may create any doubt regarding noncompliance of mandatory provisions of the N.D.P.S. Act so as to render the same doubtful. Insofar as, contention regarding enhanced punishment is concerned, then obviously bare perusal of the impugned judgment and order of conviction itself it indicative of fact that the accused was previously convicted under the provisions of N.D.P.S. Act (8/15) and was convicted in two Special Sessions Trial no. 30 of 2007 (State vs. Vijay Pandey) and 42 of 2005 (state vs Vijay Pandey), wherein, he has been sentenced to six years imprisonment and five years rigorous impri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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