JUDGMENT

S.B. SINHA, J. — 1. Leave granted.

2. This appeal by special leave arises out of a judgment and order dated 30th January 2008 passed by a learned single judge of the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in Criminal Appeal No. 491 of 1991 whereby and whereunder the judgment of conviction and sentence dated 4th September 1991 passed by the V Additional Sessions Judge, Barabanki in Sessions Trial Nos. 393 of 1989 and 395 of 1989 convicting the appellant for commission of an offence punishable under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “NDPS Act”) and sentencing him to undergo 10 years rigorous imprisonment as also the fine of Rs.1 lakh, and in default, to undergo one year as rigorous imprisonment, was affirmed.

3. Shrikant Mishra was the Station House Officer (SHO) of Safdarganj Police Station situate in the district of Barabanki. He and other members of the police party were on a patrolling duty. They came out of the Police Station in the night of 5th January 1989 with Constable No.56 Ram Shankar Srivastava (P.W.3) and Constable No.277 - Vidya Prasad Pandey. They reached near a village commonly known as “Baghaura” in the official jeep No. UHG 4682, which was driven by one Satyadev Ojha.

4. An informer allegedly reported to the appellants as also one Shobhalal of village Baghaura and Ramdutt @ Dutta of village Bariarpur illegally selling morphine in packets to the truck drivers and the people of the area. According to the said informer, they were said to have been sitting on the road side near the mill of one Vishwanath Kashyap from 6 O clock in the morning. Appellant along with said Shobhalal and Ramdutt were said to have been identified by the said police party to be sitting on the road side at about 6.15 a.m. They became a bit perplexed and frightened after seeing the police party. “Being assured”, Shrikant Mishra, Officer-in-charge, went to Barabanki to obtain authority letter for the purpose of carrying out search and seizure. He instructed the other constables to keep an eye on them. He upon obtaining the authority letter allegedly came back from Barabanki after some time. He requested some passer-by to become witness to the seizure.

They allegedly refused.

5. Letters of consent were prepared in the names of accused to the effect that they were ready and willing to be searched by the Officer-in-Charge in stead and place of a Gazetted Officer. Persons of all the accused were searched. From the right pocket of the sweater of the appellant 40 packets of morphine and from his left pocket about 70 grams of morphine wrapped in a paper were found. From the person of Shobhalal about 82 grams of morphine was found; whereas from the person of Ram Dutt about 53 grams of morphine was recovered.

6. Appellant, however, has a different story to tell. According to him, the SHO as also the constables had an evil eye on the appellant's wife. They came to his house at about 9.00 p.m. in the night of 5/6.1.1989 while his wife was serving the food to the children. He was not well. When the door of his house was knocked by a constable, his wife who examined herself as D.W.1 came out of the house and saw the Constable and the SHO. The constable was used to be called by local people as “Lala”. They enquired about him. When D.W. 1 wanted to call him, the said constable said that there was no work with him but it was with her. He thereafter told the SHO that this was the same woman who goes to Chakki for grinding. On hearing that, she started going back to her house. The said constable advanced towards her. She shouted loudly. On her shouting, Sohan Lal and the appellant came. D.W. 1 was slapped by the said constable 2-3 times and thereafter the appellant was arrested. D.W.1 along with Sohan Lal and her brother-in-law went to Barabanki to the house of the Superintendent of Police by truck. The Superintendent of Police was described as `Captain Sahib”. They could not me