Hon'ble Ifaqat Ali Khan, J.

1. This present appeal is preferred by the appellant Waris Ali against the judgment and order dated 11.03.1998 passed by Additional Session Judge, Maharajganj in Session Trial No. 34 of 1996 under section 8/21 N.D.P.S. Act, Police Station- Kolhuvi, District-Maharajganj, convicting the appellant under section 8/21 N.D.P.S. Act and sentencing him for the rigorous imprisonment for 10 years with the fine of Rs. 1,00,000/- and it is also provided that in default of payment of fine he will undergo the Additional imprisonment for 3 years.

2. Facts giving rise to this appeal are that as per prosecution on 27.07.1996 when S.O., Sangam Mishra, Sub-inspector Tahsildar Singh, police constable Rambadan Yadav and constable Anil Kumar Rai were present on the Kohulvi Tiraha for the checking of the vehicles and suspected persons then they received the information for informer that a person is coming from Nepal carrying charas in plastic bag, believing on this information police party started waiting for that person, at that time one person having a bag in his hand came from the side of Lotan Tiraha. On the pointing of informer police personnel's try to check him then that person turned back and try to run away but the police personnel's apprehended him at 8:20pm and when his name and addressed was asked then he told that he is Waris Ali son of Kulai resident of Belhiya, police out post Belhiya, police station-Bhairwa, District-Rupandehi Nepal. On being asked by police Waris Ali told that he purchase charas from Nepal and was going to sell it at Gorakhpur. On it the police personnel's told him that his search will be carried out before any Magistrate then he told that you are also Magistrate for me then the search was carried out as per rules and charas was recovered from the plastic bag, which Waris Ali was carrying. Charas was weighed-in on the spot and it was found 1kg 700gm Nepali Charas in weight. Accused was taken into custody after telling him the reason, sample was taken out from the recovered charas, sample and rest charas was sealed seperately. Recovery memo was prepared in the light of torch. Public persons gathered on the spot but no one become ready to become the witness.

3. On the basis of this recovery memo FIR was lodged at the police station and the case was registered and its entry was made in the G.D., sample was sent to the forensic lab for testing. As per report of the forensic lab recovered substance was found charas. Investigating Officer prepared the site plan and recorded the statement of the witnesses and after concluding the investigation he submitted the charge-sheet.

4. Charge under section 8/21 N.D.P.S., Act was framed against accused-appellant which he denied and demanded the trial.

5. Prosecution examined the 6 witnesses to prove his case PW1 constable Anil Kumar, PW2 Sub-inspector Tahsildar Singh, PW3 Sub-inspector Sangam Mishra, PW4 Sub-inspector Liladhar Ram, PW5 constable Bhikhari Lal and PW6 constable Vipin Bihari Singh.

6. PW1 constable Anil Kumar, PW2 Tahsildar Singh, PW3 Sub-inspector Sangam Mishra and PW4 Sub-inspector Liladhar are the witnesses of the fact. PW3 Sangam Mishra is also the complainant of this case, PW4 Liladhar Ram is the investigating officer, PW5 constable Bhikhari Lal is the scribed and who recorded the FIR and the PW6 Vipin Bihari Singh also a formal witness who proved the G.D., of registering the case.

7. Accused-appellant in his statement under section 313 denied the prosecution case and submitted that he is falsely implicated in this case.

8. Accused-appellant examined DW1 Nasib Ali in his defence.

9. After hearing the counsels for the parties, and on the basis of the evidence available on the record, lower Court convicted accused-appellant Waris Ali under section 8/21 N.D.P.S., Act and sentencing him with the rigorous imprisonment of 10 years with the fine of Rs. 10,00,000/- and it was also provided that in default of payment of fine he will u