JUDGMENT

Lok Pal Singh, J. - This appeal has been preferred against the judgment and order dated 21.11.2007, passed by the Additional District Judge, Kashipur, Udham Singh Nagar in Sessions Trial No. 62 of 2006, whereby the said court has convicted the appellant under section 20 of the Narcotic Drugs and Psychotropic Substances, Act (for short N.D.P.S. Act) and sentenced him to rigorous imprisonment for a period of five years and directed to pay fine of Rs. 20,000/-.

2. Prosecution story in nutshell is that Sub-Inspector Naresh Chauhan (PW1) along with Constable Pushkar Dutt Bhatt (PW2) and constable Dharmendra Kumar were on patrolling duty; they got information through the informant that the train via Lalkuan-Kichha-Kashipur, which reached Sarkada at 3 hours a person was traveling in it, who was carrying contraband item with him.

Relying on the said information the police personnel started search. The informer pointed towards the appellant that he is the person who is having charas. On seeing the police personnel the appellant tried to run from the spot then police personnel surrounded the appellant and arrest him at 3:15 hrs. On being asked, the appellant disclosed his name Aasiq Hussain and stated that was carrying lkg charas. On this, the police party told the accused/appellant that if he desires his search can be made before the Magistrate or any Gazetted Officer. Prosecution case is that the accused/appellant opted to be searched in the presence of police personnel. The accused were taken into custody and search was made and 1 kg., charas was recovered which was kept in green polythene inside the bag. The recovery memo (Ex. A2) was prepared, and 100 gm., of sample was taken from the recovered charas and rest of the charas was sealed. The police personnel tried to arrange some independent witness but no one is ready for the same. On the basis of the recovery memo, a report was lodged and chik FIR (Ex. A3) was prepared. Investigation of the case was taken up by S.I. Mohd. Akram. After investigation, charge sheet (Ex. A7) was filed against accused/appellant and the sample was sent to Forensic Science Laboratory, Uttaranchal. Report was received from Forensic Science laboratory disclosing that sample gave positive report of charas.

3. On receipt of the charge sheet, after giving necessary copies, Special Court appears to have heard the parties, and framed charge of offence punishable under section 20 of the N.D.P.S., Act, in reply to which accused/appellant pleaded not guilty and claimed to be tried. On this prosecution got examined as many as four witnesses, namely, P.W.I Naresh Chauhan (complainant and witness of recovery who arrested the accused, P.W.2 Pushkar Dutt Bhatt (witness of search and recovery) P.W. Prakash Chandra (subscriber of FIR) and P.W.4 S.I. Mohd. Akram (who investigate the crime and submitted the charge sheet).

4. After examining four witnesses, prosecution proceeded to record the statement of the accused persons under section 313 Cr.P.C, in reply to which he pleaded that evidence adduced against him is false. However, no evidence in defence was adduced. The trial court, after hearing the parties found accused Aasiq Hussain guilty of charge of offence punishable under section 20 N.D.P.S Act and sentenced him for a period of five years with fine of Rs. 10,000/-.

5. Perusal of the lower court record shows that P.W.I S.I. Naresh Kumar and, P.W. 2 Constable Puskhkar Dutt Bhatt have corroborated the prosecution story and have stated that on 22.04.2006 they were on patrolling duty; they got information through the informant that the train via Lalkuan-Kichha-Kashipur, which reached Sarkada at 3 hours, a person was traveling in it, carrying contraband item with him. Relying on the said information the police personnel started search. The informer pointed towards the appellant that he is the person who is having charas. On seeing the police personnel the appellant tried to run from the spot then police personnel surrou