Chakradhari Sharan Singh, J. – This appeal has been under Section 374(2) of the Code of Criminal Procedure putting to challenge the impugned judgment of conviction dated 13.07.2022 and the order of sentence dated 18.07.2022 passed by the learned 1st Additional Sessions Judge, East Champaran, Motihari, in NDPS Case No. 28 of 2016, CIS No. 31/2016, arising out of Palanwa {Bhelahi (Bhelai) OP}P.S. Case No. 25 of 2016, whereby the appellant has been convicted and sentenced as under: –

Criminal Appeal (DB) No. 221 of 2023

2. Both the sentences have been ordered to run concurrently.

3. The Sub-Inspector of Police of 13 Battalion, Shashatra Seema Bal (SSB), Anil Kumar Yadav (PW 3) is the informant of the connected Palanwa {Bhelahi (Bhelai) OP}P.S. Case No. 25 of 2016 which gave rise to the aforesaid NDPS Case No. 28 of 2016 (CIS No. 31 of 2016). A written report of PW-3 dated 18.05.2016, addressed to the Officer-in-charge Palanwa P.S. (East Champaran) is the basis for the registration of the First Information Report. According to the informant, he had received a confidential information to the effect that a person coming from Nepal to India was carrying with him certain narcotic substance. After informing his superior officials about the said input and, upon seeking their permission, he constituted a raiding team which started waiting for the person, who, according to the secret information, was likely to come from Nepal. At about 8.15 pm, he noticed a person coming from the side of Nepal having the same physical features as was informed by the informer. The person was intercepted by the team, who disclosed his name to be Naresh Yadav (the appellant herein). The raiding team disclosed to the appellant about the secret information, which was received by them, and also disclosed their intention to cause a personal search of the appellant. The informant is said to have apprised the appellant of his statutory right to be searched either in the presence of a Magistrate or by the raiding team itself. The appellant is said to have consented to his search by the raiding team. The raiding team requested two persons (Khaleel Miyan and Angad Mahto, both not examined) who were working in a nearby field to become seizure list witness to which they agreed. In the presence of the aforesaid two seizure list witnesses, personal search of the appellant was conducted leading to recovery of a white plastic bag containing nine packets. In the presence of the independent search and seizure list witnesses, with the aid of drug detection kit, the raiding team found the substance to be charas. Weight of the said substance was taken with the aid of weighing machine which the raiding team had brought. The weight of charas was found to be 4.5 kg. At 8.30 pm, the said contraband was seized by the raiding team and on intensive search of the person of the appellant, other articles, namely, wrist watch and foreign currencies were recovered. The appellant is said to have confessed before the team that he was carrying the substance for being handed over to someone at Raxaul and that he was engaged in such activity for his livelihood.

4. It is evident that though search and seizure was made on 17.05.2016 at 10.30 pm, according to the prosecution’s case, the information by the SSB to the police in the form of written report was given on the next date, i.e., 18.05.2016 at 08.40 am. From the formal F.I.R., it appears that the distance of the police station from the place of occurrence was ten kilometers.

5. We notice, at this juncture itself, that it is indisputable that soon after the seizure was made by the SSB and t