The recovery of contraband not from the personal search of the accused negates the applicability of section 50 of the NDPS Act, and lack of independent witness support does not invalidate the evidence of police personnel.

Vishnu Chandra Gupta, J.

1. This criminal appeal under section 374(2) of the Code of Criminal Procedure (In short 'Cr.P.C.') directed against the judgment and order dated 15.1.2009 passed by learned Additional Sessions Judge, Ambedkar Nagar in S.T. No. (NDPS) 13 of 2008 relating to Police Station Jahangirganj, District Ambedkar Nagar whereby the sole appellant has been convicted under section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (In short 'NDPS Act') and sentenced to undergo rigorous imprisonment of four years and fine of Rs. 10,000/- and in case of default of payment of fine, the appellant shall further undergo additional imprisonment for six months. The brief facts for deciding this appeal are that the police party headed by Sri Rana Pratap Singh, the then Station Officer Police Station Jahangirganj, was on petrol duty along with Constable Ram Singhansan Singh, Vivekanand Mishra and Vishwa Nath Singh in the intervening night of 23/24.4.1998 to see his area and to arrest the suspected criminals. When the police party reached Annapur Petrol pump at about 00: 25 A.M., Constable Mohan Prasad and Constable Kedarnath Yadav met. The police party along with the aforesaid constables proceeded towards the out-skirt of village Mirajpur where they got information through informer of police that one Khalifa Nepali resident of village Vashiya Ganga Sagar brought Ganja and going to sell it at village Dhol Bajwa. After believing the information given by the informer, the police party deployed near village Vashiya Ganga Sagar. In a short while, a person come with a bundle carrying on his head. When he come near to the police party. He was intercepted by the police. He tried to run away from the spot but police party surrounded him and arrested at about 1: 45 A.M. on 24.4.1998. On interrogation, he disclosed his name as Nizamuddin @ Khalifa and when the police party asked about the bundle kept on his head, he informed that it is Nepali Ganja and he is going to Dhol Bajwa to sell it. The police party checked the bundle and found that in a gunny bag 15 kgs Ganja was kept in plastic bag. The police party asked license for possessing such quantity of Ganja. He failed to show any license. The accused was then informed the ground of his arrest and some part of recovered Ganja was taken as a sample and separately sealed. A recovery memo was prepared on the spot which was also signed by the accused. On the basis of this recovery memo (Exh. A-1), a first information report has been lodged at Case Crime No. 59 of 1998, under section 8/20 of NDPS Act against the appellant on 24.4.1998 at about 3: 35 a.m. After registering the case in the general diary, the matter was investigated by S.I. Abdul Hasim. After obtaining the report of Forensic Science Laboratory, Lucknow affirming the contraband as Ganja, the police submitted charge-sheet before the learned Magistrate. The learned Magistrate took cognizance and framed charges. The appellant denied charges and claimed trial. The prosecution examined as many as six witnesses i.e. S.O., Rana Pratap Singh, (P.W. 1), Constable, Vivekanand (P.W. 2), Constable, Vishwa Nath Singh (P.W. 3), Constable Ram Singhasan Singh (P.W. 4 Constable clerk, Umesh Chandra Pandey (P.W. 5) and Investigating Officer S.I. Abdul Hasim (P.W. 6).

2. The accused was then examined under section 313, Cr.P.C. He claimed his false implication and stated that false recovery has been made with the connivance of the persons of the village on account of village enmity. However, he did not adduce any evidence in defence.

3. The learned Trial Court after considering the arguments and evidence adduced by the parties found that the prosecution case is reliable and has been proved from the evidence adduced by the prosecution, convicted the appellant as above.

4. I have heard learned Counsel for the appellant and Sri Izahar Husain, learned A.G.A. for the State and perused the record of appeal and also of the Lower Court.