The main legal point established in the judgment is the interpretation and application of Section 50 N.D.P.S. Act, and the significance of the weight of the recovered contraband in determining its classification.

Appellant Bablu @ Mote has preferred this appeal against the judgment and order passed by Learned Additional Sessions Judge, Court no. 1, Bahraich vide his order dated 11.10.2012, sentencing the appellant to undergo ten years rigorous imprisonment together with a fine of Rs. 1,00,000/- and in default of payment of fine, he will have to undergo another one year's rigorous imprisonment.

2. Brief facts in the instant appeal are that S.I. S.K. Mishra along with constable Jwala Prasad Mishra and constable Ravindra Mishra were engaged in picketing during night hours on24.04.2006 on western side of the canal at Village Kakri; that during the operation, the Police party noticed a person coming on the western Bank of the canal from the northern side and when the Police party checked him by throwing torch light, the person turned behind and tried to flee away towards the western side; that on being suspicious, the Police party catch hold of him using force; that when he was confronted, he introduced himself as Bablu @ Mote, son of Liyakat, resident of Radhan Tola, P.S.- Nanpara, District- Bahraich; that on personal search of that person, they found him having in possession of black polythene bag containing a solid substance in the shape of cake; when Police personnel asked to disclose what it is, he informed them that this is charas and that weighed about 1.25 kg; that the nabbed person disclosed that he is coming from Kingdom of Nepal; that when the Police personnel got aware that the recovered article is charas i.e. narcotic substance, then they informed him that he can get his search conducted in front of Magistrate or before a Gazetted Police Officer; that the apprehended person surrendered and informed that he is in possession of Narcotic substances, it does not matter whether they search him or search be made before a Magistrate or Police Officer; that after obtaining his consent, a consent letter (exhibit-Ka 2) was prepared at the spot; that out of the recovered article 24 gram was taken for testing in the Laboratory and 24 gram specimen was prepared and separately packed in plastic and placed in a separate envelop and was sealed on the spot; that remaining article recovered was also sealed on the spot and a specimen seal was prepared and thereafter the person was taken into custody at 2.00 am under Section 8/20 N.D.P.S. Act.

3. The recovery memo was prepared in the torch light, which is exhibit -Ka 1 and a copy of it was given to the appellant. The police personnel deposited the recovered material at the Police Station along with the recovery memo (Exhibit-ka 1) and handed over the custody of the accused to the Nanpara Police at the Police Station, a case was registered as Crime no. 713/2006, under Section 8/20 N.D.P.S. Act and on the basis of this, the FIR was registered at 4.30 am, which is exhibit-ka 4; that the description of this has been mentioned in G.D. No. 6, which is exhibit-Ka-3.

4. The Investigating Officer started the investigation immediately on 24.04.2006 and prepared a cite plan (Exhibit-Ka-5) after recording the statement of the witnesses of fact and the specimen prepared at the spot was sent to the Forensic Science Laboratory, Lucknow for examination. The Investing Officer, after completing all formalities, submitted the charge-sheet (Exhibit-ka-7) in the Court on 09.05.2006.

5. The Court of Magistrate took cognizance on the charge-sheet and committed to the Court of Sessions for Trial. The appellant denied the charges and preferred to be tried.

6. The prosecution examined as many as five witnesses to prove its case. P.W-1 Constable Jwala Prasad Mishra and P.W.-2 Sub-Inspector Srawan Kumar Mishra, are witnesses of fact who arrested the appellant and conducted the search. P.W.-3 is Head Constable Munindra Kumar Tripathi, who has registered FIR and P.W.-4 is Sub-Inspector Ram Swabhav Verma, who has conducted the investigation. Where P.W.-5 is constable Anirudh Kumar Singh. The amicus curiae appointed