Hon'ble Dinesh Kumar Singh-I,J.

1. This Criminal Appeal has been filed against judgment and order dated 13.12.1995 passed by Additional Sessions Judge, Varanasi in Criminal case No. 297 of 1991 (State of U.P. Vs. Guddu Kumar Gupta) whereby the accused appellant Guddu Kumar Gupta has been convicted and awarded punishment under Section 8/20 N.D.P.S. Act of 4 years R.I., fine of Rs. 10,000/- and in default of payment of fine, 6 months additional R.I.

2. In brief the facts of prosecution are that accused appellant Guddu Kumar was sitting in a bus with a bag in his hand and when his personal search was taken, 3 kg. Illegal 'ganja' was recovered from him for which he had no license to possess and the said recovered 'ganja' was tested on the spot in presence of the witnesses and was found to be 'ganja'. The search of the accused was made by Sri C.B. Singh in front of the witnesses. The witness of recovery was Sri R.S. Mishra (P.W.1), an officer of enforcement team, who was excise inspector of district Varanasi. Recovery memo (Exhibit Ka 1) which is on a prescribed proforma 'D-19 A' has been prepared by P.W.1. The signatures of the above officers with some others were obtained on the recovery memo and a copy of the recovery memo was provided to the accused appellant. It is also recorded in the recovery memo that after testing the recovered 'ganja' on the spot in presence of the witnesses, the same was sealed on the spot in a cloth and thereafter was kept in the same bag from which it was recovered and was sealed. Record reveals that the charge was framed against the accused appellant on 28.02.1992 under Section 8/20 N.D.P.S. Act to which he pleaded not guilty.

3. The prosecution examined Sri R.S. Mishra, Excise Inspector as P.W. 1 and Sri Bhanu Pratap Singh, Excise Constable as P.W.2 and both these witnesses are witnesses of fact. Thereafter prosecution evidence was closed and statement of accused under Section 313 Cr.P.C. was recorded in which he denied any such recovery to have been made from him and took the plea of false implication. It is further stated by him that he had had an altercation with Majlu Mehta, Chaukidar of Excise Office, Varanasi. He had got him arrested by getting him implicated in this case falsely. He was taken away from his house at 12 noon to the house of Officer of Excise Department and from there at about 8-9 p.m., he was taken to the police station.

4. The learned court below on the basis of evidence on record has held that the recovery of 3 kg 'ganja' was proved for which he could not show license to possess and accordingly he has been awarded the aforementioned punishment. Besides above, the prosecution had produced documentary evidence which is as follows:- Recovery memo as Exhibit Ka-1, site plan as Exhibit Ka-2, charge sheet as Exhibit Ka-3, F.S.L. report paper No. 20 ka and the bag from which the contraband substance was recovered is material Exhibit 1, recovered 'ganja' is material Exhibit 2 and the white cloth in which it was kept is material Exhibit 3.

5. Learned counsel for the appellant, Sri. B.P Singh, has argued that neither any evidence has been taken of the conductor and driver to corroborate that the said recovery was made from the accused appellant nor any public witness has been taken. The Arresting Officer and the Investigating Officer are the same person in this case; no search warrant was taken before arrest was made; the contraband substance which is alleged to be 'ganja' was in fact found by the Forensic Science Laboratory to contain 'bhang' as well. There is no separate quantity mentioned in the report as to what was the quantity of 'ganja' and what was the quantity of 'bhang' in the said recovered contraband substance. The Office of the Excise Department is located about 1 km from the house of the accused and from there at a distance of 500 meters, this recovery is alleged to have been made which supports the defence of the accused that he was picked up from his house for