Dinesh Kumar Singh-I, J.

1. This criminal appeal has been filed against the judgment and order dated 30.8.1999 passed by the then VIIth Additional Sessions Judge, Varanasi in Criminal Case No. 624 of 1996 (State Vs. Barsati Yadav), under Section 21 of NDPS Act whereby accused-applicant has been convicted and awarded punishment of ten years rigorous imprisonment, fine of Rs. 1,000,00/- and in default of payment of fine, two years additional simple imprisonment.

2. In brief, the prosecution case is as follows. On 23.10.1996, S.I. Sri Dalpati Singh (PW-3), Constable Rajendra Bahadur Singh (PW-1) and Constable Mayapati Pandey (PW-2) reached village Tarna Bazar during patrolling duty. They found one person near whom, there were few persons, who fled away from there seeing the police. Getting suspicious police gave him a chase and arrested him at about 3:15 pm. When inquired, he disclosed reason of his running away that he sells 'Heroin' in pudias and as he was selling the same, he was trying to flee away from there. When it was inquired as to whether still he had heroin with him, he replied in affirmative. At this, he was commanded to be taken to a Magistrate or a Gazetted Officer as he was possessing Heroin. He stated that he should not be taken to any such Officer as he was ready to give his search to them only and saying this he took out a small polythene from "Tahmad" which contained forty pudias of brown coloured Heroin. These pudias were weighing about five grams. Apprising him about his act being an offence u/s 8/20/21 NDPS Act, he was taken into custody and the recovered Heroin was kept in a box and was sealed. The sample seal was prepared. During this process, a number of passersby were there who were asked to be a witness but stating that 'who could give statement against a criminal' they went away. The recovery memo was prepared on the spot and after having been read out, signatures were taken thereon of the companion officials. Thereafter the police party along with accused and the recovered contraband reached the police station where Case Crime No. 194 of 1996 was registered against the accused appellant Barsati Yadav u/s 8/20/21 of NDPS Act, P.S. Shivpur, Chick FIR (Ext. Ka-6) of which was prepared and the entry of this case was made at Report No. 30 in GD dated 23.10.1996 at 16:40 hours. The case was investigated by S.I. Pramod Kumar Pandey (PW-4), who made site plan (Ext. Ka-2) at the instance of the first informant and after having recorded entire evidence and taking into consideration the FSL report (Ext. Ka-5) submitted charge sheet (Ext. Ka-3) against the accused under Sections 8/20/21 of NDPS Act.

3. Learned court below framed charge against accused on 6.6.1997 under Section 21 of NDPS Act, to which the accused-appellant pleaded not guilty.

4. From the side of prosecution, Constable Rajendra Bahadur Singh was examined as PW-1, Constable Mayapati Pandey as PW-2, Constable Dalpati Singh as PW-3 and Investigating Officer Sri Pramod Kumar Pandey as PW-4.

5. Thereafter the evidence of prosecution was closed and the statement of accused was recorded under Section 313 Cr.P.C., wherein he refused recovery of any contraband substance from him and stated that 2-3 days prior to the date of occurrence, the police arrested him after taking away from his home and he was beaten badly. He has been falsely implicated in this case. He examined Lallu Yadav as D.W.-1 in defense. His affidavit dated 23.10.1996 (Ext. Kha-1), letters sent by C.J.M., Varanasi for medical examination of the accused (Ext. Kha-2) and the medical examination report (Ext. Kha-3) have been filed in defense. Besides that by way of documentary evidence, prosecution has produced recovery memo (Ext. Ka-1), site plan (Ext. Ka-2), Charge sheet (Ext. Ka-3) Docket (Ext. Ka-4), FSL's Report (Ext. Ka-5), Chick F.I.R. (Ext. Ka-6), G.D. (Ext. Ka-7).

6. Learned court below had found the case proved against him in respect of the above charge and awarded him afo