C.A.V. JUDGMENT

In the present appeal, the appellants have challenged the judgment of conviction dated 08.05.2014 and the order of sentence dated 13.05.2014 passed by the learned 6th Additional Sessions Judge, Muzaffarpur, in Trial No. 08 of 2013, arising out of Muzaffarpur Town P.S. Case No.662 of 2011, whereby the appellants have been convicted for the offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “N.D.P.S. Act”) and have each been sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 25,000/-, in default of payment of fine, they have further been sentenced to undergo rigorous imprisonment for six months. The appellants were acquitted of the charge under Section 22 of the N.D.P.S. Act.

2. The prosecution case, as set out in the fardbeyan of of official informant Vijendra Kumar Shahi (P.W.- 7), the then Officer-in-Charge of Town Police Station, Muzaffarpur, recorded on 23.12.2011 at 1:30 P.M. at the campus of Shyam Cinema Hall, is that at about 11:15 A.M. on that day he received a secret information that some criminals were going to assemble at Shyam Cinema Hall with a view to commit some offence. He conveyed the information to Sunil Kumar (P.W.-3), Officer-in-Charge, Brahmpura police station and to Madan Singh (P.W.-4), P.S.I., Mithanpura police station and requested them to assist him. Thereafter, at about 11:45 A.M., the informant, along with the said officers, Raman Kumar Singh, P.S.I. (P.W.-6), Ramakant Singh, Hawaldar (P.W.-5) and four members of the S.A.P., proceeded to Shyam Cinema Hall by police jeep, where a Kashmiri Mela was going on. The police party is said to have noticed two persons standing in a suspicious manner behind a stall of the Mela, who attempted to flee on seeing the police but were apprehended, who disclosed their names as Robin Rai @ Naveen Rai and Ritesh Kumar. It is alleged that on search being made in the presence of two independent witnesses, 500 grams of charas was recovered from the possession of each of them.

3. On the basis of the said fardbeyan, Muzaffarpur Town P.S. Case No. 662 of 2011 was registered on 23.12.2011 for the offences under Sections 20 and 22 of the N.D.P.S. Act. The investigation was conducted by Raman Kumar Singh, P.S.I. (P.W.-6), who was himself a member of the raiding party, and charge-sheet was submitted against the appellants. Cognizance of the offences was taken by the learned Sessions Judge, Muzaffarpur, on 19.03.2013, whereafter the case was transferred to the court of the learned 6th Additional Sessions Judge, Muzaffarpur. Charges were framed on 01.04.2013 under Sections 20(b)(ii)(B) and 22 of the N.D.P.S. Act, which were amended on 06.03.2014. The appellants pleaded not guilty and claimed to be tried.

4. During the course of trial, altogether seven witnesses were examined in support of the prosecution case, which are as under :-

5. Apart from the oral evidence, the following documents were exhibited on behalf of the prosecution :-

6. The contraband said to have been seized from the appellants was not produced before the learned trial Court at any stage of the trial. On behalf of the defence, the order dated 23.12.2011 passed by the learned Chief Judicial Magistrate, Muzaffarpur, in Misc. Case No. 48 of 2011 was exhibited as Exhibit-A.

7. After completion of the prosecution evidence, the statements of the appellants were recorded under Section 313 of the Code of Criminal Procedure (for short “Cr.P.C.”), in which they denied the allegations and stated that they are innocent and have been falsely implicated. The specific defence of the appellant Ritesh Kumar, as noticed by the learned trial Court, is that he had been picked up by the informant on 15/16.12.2011 and kept in alleged illegal custody and for which his wife, Sangam Devi, had instituted Misc. Case No. 48 of 2011 before the learned Chief Judicial Magis