JUDGMENT :

1. Heard Sri Vikas Vikram Singh and Sri Syed Mehfuzur Rehman, learned counsel for the appellant, learned AGA for the State and perused the record.

2. The instant appeal has been preferred under Section 374 of Cr.P.C. against the judgement and order dated 29.10.1998 passed by Additional Sessions and District Judge, VIIIth, District Lucknow in Session Trial No. 110 of 1994, arising out of Case Crime No. 352 of 1994, Police Station Hazratganj District Lucknow, wherein, the appellant, Liyaqat Ali, has been convicted and sentenced for the offence under Section 8/21 of Narcotics Drugs and Psychotropic Substance Act, 1985, (hereinafter referred as ‘NDPS Act’) for 10 years rigrious imprisonment with fine of Rs. 1,00,000/-and in default of payment of fine he shall further undergo two years of simple imprisonment and in Case Crime No. 353 of 1994, Police Station Hazratganj, District Lucknow, in addition to the aforesaid sentence, the appellant has also been convicted and sentenced for the offence under Section 25/4 of the Arms Act, 1959 for one year of simple imprisonment. Both the sentences were ordered to be run concurrently.

3. The prosecution case in brief is that on 23.03.1994 at 11:45, the appellant/accused was arrested by the Police at the boundary of Gora Kabristan and a knife as well as 500 gms Smack was recovered from his possession. On being confronted to produce the license of keeping the knife as well as the contraband/smack, the accused-appellant failed to produce any valid document. Inspector Sunil Kumar Mishra prepared the recovery memo on the place of occurrence on the basis of which Head Constable Harful Verma scribed the First Information Report and made an entry in the GD regarding the possession of illegal arm and contraband with the accused-appellant on basis of which the First Information Report was registered and the investigation was carried by Sub-Inspector S.S. Hussain and on account of incompletion of the investigation, the investigation was entrusted to Sub-Inspector, R.K. Tiwari but also due to some reasons, he could not complete the investigation and then the investigation was entrusted to V.K. Trivedi who after completing the investigation and on the basis of FSL Report ascertaining that the contraband recovered from the possession of the appellant is Smack, filed a charge-sheet against the appellant under Section 8/21 of the NDPS Act and under Section 25/4 of the Arms Act.

4. Charges for the offence under Section 8/21 of the NDPS Act and Section 25/4 of the Arms Act were framed by the learned trial Court and it was read to the appellant which he denied and claimed for trial.

5. The prosecution, in order to prove its case produced Sub-Inspector Sadanand Rai (P.W.1) and Constable Satendra Pachori (P.W.2). Apart from the aforesaid two witnesses, there were no other witness produced by the prosecution for the reason that the learned counsel appearing on behalf of the appellant before the learned trial Court confessed the certification of the documentary evidence.

6. After conclusion of the prosecution witness, the statement was recorded under Section 313 of Cr.P.C. where he denied the prosecution and stated that no recovery was made from his possession and all the documents were prepared fraudulently with a motive to falsely implicate him.

7. To controvert the prosecution story, Nisar (D.W.1) and Ikrar Ahmed (D.W.2) were examined by the appellant and a copy of the telegram of intervening night 22/23 dated 23.03.1994 to the Station House Officer, Hazratganj was also produced as an evidence in which it was stated that at about 1 of 2 in the night, some police personals called Ikrar and Liyaqat Ali and both were taken by the police personals on a pretext that the Inspector of Police Station has called them. Apart from the aforesaid, there is no other evidence produced on behalf of the appellant.

8. After the conclusion of the trial, the learned trial Court hold the appellant guilty under Section 8/21 of NDPS