Dinesh Kumar Singh-I, J.

1. This criminal appeal has been filed against judgment and order dated 17/8/1998 and 18/8/1998 passed by the then First Additional Sessions Judge, Mainpuri in Sessions Trial Number 328 of 1991 convicting and sentencing the appellants Jaipal and Surendra under section 18 of NDPS Act for 10 years rigorous imprisonment each, fine of Rs. 1 lakh each and in default of payment of fine 2 ½ years additional rigorous imprisonment each.

2. In brief the prosecution's case is that on 27/1/1988 S I Sateesh Chand Tyagi along with constable Satyadev and constable Bahora Singh were busy in patrolling duty and were going towards Bewar. Right then two persons came to the Tri-section from the side of GT Road, Kasva Bewar Bazar, who having seen the police, started their movement briskly. Having become suspicious, both of them were directed to stop, but they did not stop. Thereafter the police party arrested them both near PHC Bewar on GT Road at about 18.15 hours. The shopkeepers of the vicinity were requested to be witness but none was ready, therefore feeling helpless, in the presence of members of the police party, after having made personal searches each other and ensuring that no objectionable article was with them, they enquired the name of these persons and their personal search was made on the spot. One of them introduced himself as Jaipal and from his search, from the right pocket of his pant wrapped in one Pudia of paper and Panni 75 gram opium was recovered. The other person introduced himself as Surendra and from his personal search also, 75 gram opium wrapped in pudia and panni was recovered, to possess which they did not have licence. The recovery memo (Exhibit Ka 1) was prepared on the spot in the light of torch. The recovered opium was sealed back in the same panni and pudia in which they were recovered accused- wise and sample seal was also prepared. The case against the accused persons was found made out under section 17/30 of the NDPS Act. A copy each of the recovery memo was given to the accused persons.

3. The police party, along with the accused persons, recovered contraband substance and its sample, reached the Police Station Bewar, Distt. Mainpuri and lodged F.I.R. registered as case crime no. 27 of 1988 under Section 17/30 N.D.P.S. Act (to be referred in short as ''the Act') against accused appellant Jaipal and case crime no. 22 of 1988 under Section 17/30 of the Act against the other accused appellant Surendra. Chick F.I.R. paper No.49 (a) was prepared and the entry of the case was made in the G.D. dated 27.1.1988 at report no.49, time 19:30 hours (paper No. 77A/7). The investigation of the case was assigned to S.H.O. P.N. Nigam of both the crime numbers, who made inspection of the spot and prepared site-plan at the instance of the complainant of the case, which is paper No.77A/8. The F.S.L. report is Exhibit Ka 2 relating to appellant Surendra and Exhibit Ka 3 relating to Jaipal. After collecting the evidence the I.O. found the case proved against both the appellants and filed separate charge-sheets dated 30.4.1992 against both of them.

4. On the basis of evidence collected, charges were framed separately against appellant Jaipal and Surendra on 30.4.1992 under Section 18 of the Act, to which they pleaded to not guilty.

5. From the side of prosecution, in support of their case, Sri Satish Chandra Tyagi (retired S.I.) was examined as P.W.1 and Constable Sri Bahora Singh was examined as P.W.2.

6. Thereafter the evidence of the prosecution was closed and the statement of accused were recorded under Section 313 Cr.P.C. in which both of them denied recovery of the alleged contraband substance from them and stated that they were falsely implicated due to party-bandi of village. Police had picked them up from their houses.

7. The learned Court below after having considered the entire evidence led by the prosecution found the case proved against them and awarded punishment which has been ment