JUDGMENT :

Aditya Kumar Trivedi, J.

Vide judgment of conviction dated 16.03.2017 and order of sentence dated 23.03.2017 appellant Sanjay Patel has been found guilty for an offence punishable under Section 20(b) (ii)(c) of the NDPS Act and sentenced to undergo R.I. for ten years as well as to pay fine appertaining to Rs.1,00,000/- in default thereof to undergo S.I. for one year, additionally, under Section 22(c) of the NDPS Act sentencing to undergo R.I. for 10 years as well as to pay fine of Rs.1,00,000/- and in default thereof to undergo S.I. for a year, under Section 23(c) of the NDPS Act and sentenced to undergo R.I. for ten years as well as to pay fine appertaining to Rs.1,00,000/- in default thereof to undergo S.I. for one year, additionally, with a further direction that the sentences should run concurrently, with a further direction that the period having undergone during course of trial will be set off in accordance with Section 428 of the Cr.P.C. by the Additional District & Sessions Judge-IIIrd, West Champaran, Bettiah in Trial No.48/2012 (NDPS Case No.58/2012) arising out of Kangali P.S. Case No.37/2012.

2. Mukesh Kumar (PW.2), Office-in-charge of Kangali Police Station while had gone to village-Maswas along with police party in order to maintain law and order on the eve of Mahaviri Jhanda, he was informed with regard to likelihood of passing of smugglers along with ganja. Accordingly, they proceeded therefrom, came at the orchard of Mithilesh Pandey and cordoned. At about 01:15, AM they perceived five persons coming having bundle over their respective heads whereupon, they pounced and during course thereof, all the smugglers began to flee after throwing the bundle. They all were chased and it is said that one person, Sanjay Patel (Appellant) was apprehended amongst them. Thereafter bundles were searched out, collected. After opening the same ganja has been found and so, seizure list was prepared in presence of two independent witnesses, namely, Mawal Mian and Imam Mian. Then thereafter, fardbeyan was recorded. After institution of Kangali P.S. Case No.37/2012, investigation commenced and concluding the same, charge sheet has been submitted facilitating the trial, meeting with the ultimate result, subject matter of instant appeal.

3. Defence case as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. However, nothing has been adduced in defence.

4. In order to substantiate its case, prosecution has examined altogether six PWs who are PW.1-Nawal Kishor Kumar, PW.2-Mukesh Kumar, PW.3-Amod Kumar, PW.4-Umesh Yadav, PW.5-Munna Kumar, PW.6-Sidheshwar Prasad Verma. Side by side exhibited Ext.1-seizure list, Ext.1/1-signature of informant over seizure list, Ext.2-fardbeyan, Ext.2/1-endorsement over fardbeyan, Ext.3-formal FIR, Ext.4-inculpatory extra judicial confessional statement of appellant/accused and Ext.5-FSL report.

5. As stated above nothing has been adduced on behalf of defence.

6. Heard learned counsel for the appellant as well as learned APP. Gone through the evidences available on the record. After perusal of the same, it is evident that nothing has been recovered from physical possession of the appellant. Even from the seizure list as is evident speaks about seizure of one quintal nepali ganja from different yellow colour plastic bags from the orchard of Mithilesh Pandey. It is further evident from the evidence that none of them had stated that appellant was carrying bundle over his head nor, during course of chase he threw bundle having ganja inside. It is further evident from the evidence of the witnesses that none had disclosed regarding source of light. All the witnesses have stated that it was dark night. All the members of the police party scattered during course of chase and so, were unable to say that appellant was one of the smugglers. It is the evidence that they chased and during course thereof, raised alarm whereupon villager