The prosecution must prove recovery and confirmation of contraband substances beyond reasonable doubt, and the sustainability of conviction without the defendant's confessional statement.

JUDGMENT :

SUDHIR SINGH, J.

The present appeal has been preferred 26 years ago, against the judgment of conviction dated 07.08.1996 and order of sentence dated 09.08.1996 passed by the Sessions Judge, Rohtas at Sasaram in N.C.B. case No.3 of 1993, whereby and whereunder the appellant has been convicted under Sections 21 read with Section 8 of the Narcotics Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as the ‘N.D.P.S. Act’) and 27(A) of the N.D.P.S. Act and has been sentenced to undergo R.I. for 13 years besides payment of fine of Rs.1,20,000/-under Section 21 of the N.D.P.S. Act and in default thereof to undergo further R.I. of one year. Same and similar sentence has been awarded to the appellant for the offence under Section 27(A) of the N.D.P.S. Act also. Both the sentences of the appellants have been directed to run concurrently. The sentences in default of payment of fine however shall run separately and consecutively.

2. Prosecution report-cum-complaint petition (Ext-7) was lodged by Rajendra Singh Pathak (P.W.1), Intelligence Officer, Narcotics Control Bureau, Varanasi on 22.06.1993. The complainant is an Intelligence Officer in Narcotics Control Bureau, Varanasi and has filed the complaint as public servant. The prosecution case, in short, is that on receipt of a prior secret information that the accused was indulging in illicit trafficking of Narcotic Drugs (heroin) and was possessing and keeping heroin in huge quantity at his residence in village Dandwa Mallah Tola Mohania. The complainant had transmitted this information to the Deputy Director, Narcotics Control Bureau, Varanasi and had organised a raiding party of officers of Narcotic Control Bureau, Central Excise and Customs and D.R.I. They reached the residence of the appellant at 7:00 A.M. on 29.03.1993. They called two independent witnesses of the locality, namely, Shri Lal Bahadur Prasad (P.W.3) and Jai Shri Chaudhary (D.W.1), who were available near the house of the appellant. They all knocked the door of house of the appellant. The appellant had himself opened the door. After giving their own introduction the aforesaid officers disclosed to the appellant their purpose regarding search of his house. The officers were willing to give their own search prior to their entrance into the dwelling house of the appellant, but as the accused denied the offer, the officers went into the house without giving their own search. The dwelling house of the appellant was lawfully searched in presence of the appellant and two independent witnesses named above on 29.03.1993 at 7:05 a.m. On search, one country made pistol loaded with one live cartridge was recovered from the room, which was exclusively occupied by the appellant. The arm and ammunition were kept on the bed which was concealed by bed sheet of the appellant. Besides that, four more live cartridges of .315 bore kept in a packet were also recovered from an almirah affixed in the wall. On opening the electric switch Board affixed in the wall of the said room a polythene packet containing grey colour powder was also recovered in presence of the witnesses and the appellant. The appellant himself disclosed that the recovered powder was heroin. The officers also tested the powder with the aid of text kit possessed by them at spot and found it to be heroin. Further on removing the bricks of a cavity in one of the walls of the room, it was found that there was a Jhola containing a big polythene packet containing currency notes of different denominations amounting to Rs.33,798/-. On weight the recovered heroin measured 65 grams. Out of it, two samples of 5 grams each were drawn at spot packed, sealed and signed by the appellant, witnesses and the officers. The rest of the recovered heroin, country made pistol along with the live cartridges were also packed and sealed separately. The currency notes were also wrapped and sealed properly in the same polythene packet and in the Jhola and the packet was signed