Hon'ble Dinesh Kumar Singh-I,J.

1. This criminal appeal has been filed against the judgment and order dated 3.9.1997 passed by First Additional District and Sessions Judge, Siddharthnagar in Criminal Case No. 32 of 1995 (State Vs. Awadh Ram) arising out of Case Crime No. 103 of 1995 under Section 20B (ii) of NDPS Act, P.S. Dhebharua, District Siddharth Nagar, whereby the accused appellant Awadh Ram has been convicted and awarded punishment of ten years rigorous imprisonment, fine of Rs. 1,00,000/- and in default of payment of fine three years additional rigorous imprisonment.

2. In brief, the prosecution case is as follows:-

3. On 19.9.1995, Sri Aslam Khan, S.O. Dhebaruwa (PW-1) along with his companion Constables Akhilesh Shahi (PW-2), Rajmani & Prabhunath were doing patrol duty with their official vehicle being driven by Constable Ramugrah. When they reached near Chargahwa Bridge 200 Grudge prior to Badhni Pachpedwa towards east of the bridge, they slowed down the vehicle and at about 3.00 am in the night saw that one person was coming on foot from the side of Bhatni towards Pachpedwa. When they reached near them, they focussed their torch on him and tried to stop him, but he started running. The police party after having used sufficient force, caught hold of him and asked his name. He disclosed his name and also simultaneously told that he was having charas, which he was bringing from Nepal. He was given opportunity as to whether he wanted his search to be made in presence of a Gazetted Officer or a Magistrate but he did not avail of that and told the S.O., Aslam Khan that he could take his search. When he was searched, from his bag which he was carrying in his right hand, about 1kg and 750 grams charas wrapped in a cloth was recovered. He cold not produce any licence to possess the said charas. Out of that recovered charas, 100 grams was taken as sample by S.O., Aslam Khan and thereafter, the sample taken and the reamainder charas were sealed in separate clothes by S.O., Aslam Khan and recovery memo was prepared. A copy of the same was given to accused in presence of companion police officials as witnesses. The signature thereon (recovery memo) was also obtained of the accused which is Ext. Ka-1. Thereafter, the police party along with the case property and the accused reached P.S. Dhebarua and on the basis of the said recovery memo, chick F.I.R. was prepared and a case was registered against the accused under Section 20/23 of NDPS Act as Case Crime No. 103 of 1995, Chick F.I.R. (Ext. Ka-2) of which was prepared and the entry of this case was made in G.D. dated 19.9.1995 at Report No. 5 at about 5:40 am. The investigation was handed over to Ashesh Pal Singh (PW-3), who conducted the inspection of the spot at the instance of PW-1 and prepared the site plan which is Ext. Ka-4. After taking into consideration, the report of FSL dated 3.3.1996 (Ext. Ka-6) and entire evidence collected by him, he submitted charge-sheet (Ext. Ka-3) against the accused-appellant.

4. The charge was framed against the accused on 26.4.1996 under Sections 20(b)(ii) of NDPS Act to which he pleaded not guilty and claimed to be tried. From the side of proseuction Aslam Khan, S.O. has been examined as PW-1, Constable Akhilesh Shahi has been examined as PW-2, who are witnesses of fact and S.I. Shri Ashesh Pal Singh as PW-3 who conducted the investigation. Thereafter, the evidence of the prosuection was closed and the statement of accused-appellant was recorded under Section 313 Cr.P.C., in which he denied any such recovery of contraband substance from him and took the plea of false implication. He also examined witness Chhedi as DW-1 and witness Abdul Haq as DW-2 in defense.

5. Learned court below has held the accused-appellant guilty on the basis of above evidence and awarded him the abovementioned punishment.

6. Perusal of the judgment of court below indicates that it did not find material contradictions in the statements of PW-1 and PW-2 nam