Hon'ble Dinesh Kumar Singh-I, J.

1. This Criminal Appeal has been directed against judgment and order 9/7/2013 passed by the Additional Session Judge, Court No. 12, Varanasi in Special Criminal Case No. 187 of 2011, State vs. Shaukat Ali arising out of Case Crime No. 93 /2011, PS Manduwadih under sections 8/21 of the NDPS Act, whereby he has been awarded 10 years R.I., fine of Rs.1.00 lakh and in default of payment of fine one year additional imprisonment.

2. In brief, the facts of the case are as follows:-

3. The police Patrolling Party headed by Sub Inspector, Arun Kumar (PW 1) with his companion constables namely, Kanahiya Ram and Manoj Rai (PW 3) were busy in their area. When they reached SBI ATM near Manduwadih station, one person was seen coming from Kakarmatta side, who looking the police personnel took about turn and tried to flee but was followed by police party and was caught near Hanuman temple. He disclosed his name to be Shaukat Ali and told that because he was possessing 350 grams of heroin, he wanted to avoid arrest but was caught. On his such disclosure he was apprised about his legal right to be searched in presence of a Gazetted Officer or a Magistrate, but he expressed that he had already told them that he possessed heroin hence, they could take his search and that he had full faith in them. The written consent (Exhibit Ka 1) was obtained from him for being searched by the police party. Thereafter the accused was searched and from a bag being carried by him in his right-hand heroin was recovered. He stated that he was to go to Mau to sell the said contraband by train. The recovered heroin was weighed and was found to be 350 grams, but he could not show any license to possess the same. He was told that he had committed an offence under section 8/21 NDPS Act and had to be arrested and was taken into custody at 6 AM. The recovered contraband was sealed on the spot and sample of seal was also prepared. Many people were passing by but none of them came forward to be a witness of this recovery to avoid incurring enmity. The recovery memo (Exhibit Ka 2) was prepared and the same was read out to the accused and a copy of the same was also given to him. On the basis of recovery memo a case crime No. 93 of 2011 under section 8/21 of NDPS Act was registered on 10/4/2011 at 6 a.m. by constable Virendra Kumar Sharma (PW 2) at police station Manduwadih, Chick F.I.R. of which is Exhibit Ka 3. He also made entry of institution of case in GD at report No. 19, time 7:30 PM on 10/4/2011. The investigation was handed over to Sub Inspector, Shri Pankaj Pandey (PW 4) who prepared the site plan (Exhibit Ka 5) at the instance of the first informant. Constable Ajay Kant Rai (PW 5) took the recovered contraband (material Exhibit - 1) and the sample seal to PS Manduwadih and deposited the same there, from where the same was sent to the Forensic Science Lab for being tested.

4. The report of FSL is paper No. 16/ C2 (not exhibited), however under section 293 of the Cr.P.C., FSL report is admissible in evidence, the same being report of an expert. The Investigating Officer (PW 4) after recording statement of all the witnesses and taking into consideration the documentary evidence on record found the case proved against the accused appellant and submitted charge sheet (Exhibit Ka 6) against the accused.

5. From the side of prosecution as many as 5 witnesses have been examined, they being the first informant S.I. Sri Arun Kumar Yadav examined as PW 1, Constable Virendra Kumar Shah as PW 2, Constable Manoj Kumar Rai as PW 3, S.I. Pankaj Pandey as PW 4 and Constable Ajay Kant Rai as PW 5. Thereafter the evidence of prosecution was closed and the statement of accused under section 313 of the Cr.P.C. was recorded in which he took the plea of false implication and stated that he was forcibly arrested by the police which fabricated this case against him.

6. The learned Court below after having taken entire evidence on record has come