IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.54 OF 2006 Sayed Ahmed ……… Appellant Versus The State ……… Respondent September 4, 2009 Sri Amit Kapri, Adv. i/b Smt. Pushpa Joshi, Adv. for appellant Sri M.A. Khan, Brief Holder for the State HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant under Section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as ‘Cr.P.C.’), is directed against the judgment and order dated 20.03.2006 passed by Special Sessions Judge, Almora in Special Sessions Trial No.01 of 2005, State v. Syed Ahmed, whereby the learned Special Sessions Judge has convicted the appellant/ accused under Section 8/20(B) of The Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the Act’) and sentenced him to undergo rigorous imprisonment for a period of three years along with fine of Rs.10,000/- and in case of default in the payment of fine, further six months’ imprisonment was awarded to the appellant/accused. 2. Heard learned Counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that on 4.1.2005 at about 12:40 A.M., P.W.2 S.I. Bahadur Singh Pangti along with P.W.1 Constable Lalit Mohan arrested the appellant-accused Syed Ahmed after using force on the Dharanaula road near Ramlila Ground, 2 District Almora. On being asked the reason of fleeing, appellant-accused confessed that he was having some Charas with him and he was running on the fear of being arrested. It was also stated that the appellant-accused was asked to be searched before a Gazetted Officer but he told the police personnel that he had faith on them and they might search him. On his search, about 300 grams of Charas was said to be recovered from the possession of appellant-accused which was in the form of sticks. The recovered Charas was sealed on the spot and two specimens (namoona i.e. contraband) of Charas, 10 gms. each, was also prepared and rest of the Charas was also sealed and specimen of seal was prepared. Fard of recovery Ex.Ka-1 was also prepared on the spot. Along with the recovered article, the appellant-accused was taken to the Kotwali Almora where Chik FIR was prepared on the basis of recovery memo on 04.01.2005 at 5:40 A.M. by Constable Clerk Hem Chandra Tewari, that Chik FIR is Ex.Ka-2. Entry was also made in the G.D., carbon copy of which is Ex.Ka-3. Investigation of this case was entrusted to S.I. Km. Rashida, who during the course of investigation inspected the place of occurrence and prepared the site plan of the place of occurrence, i.e. Ex.Ka-4. The recovered Charas was also sent for the chemical examination and the report given by Joint Director, Scientific Laboratory, Agra is Ex.Ka-5. During investigation, the I.O. recorded the statements of witnesses and on completion of investigation, filed the charge sheet against the appellant-accused in the court, i.e. Ex.Ka-6. In the charge sheet, seven cases were also shown against the appellant-accused which are as follows:- A. Case Crime No.837/97 u/s 18/20 of the Act B. Case Crime No.358/99 u/s 4/25 of the Arms Act 3 C. Case Crime No.234/2000 u/s 401 IPC D. Case Crime No.474/2000 u/s 401 IPC E. Case Crime No.938/2000 u/s 457/380 IPC F. Case Crime No.944/2000 u/s 18/20 of the Act G. Case Crime No.490/2000 u/s 380 IPC H. Case Crime No.887/02 u/s 18/20 of the Act 4. On 22.04.2005, learned Special Judge/ Sessions Judge, Almora framed the charge for the offence punishable under Section 8 r/w Section 20 of the Act against the appellant/accused. The charge was read over and explained to the appellant/accused, who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution has examined PW1 Constable Lalit Mohan, P.W.2 S.I. Bahadur Singh Pangti and P.W.3 S.I. Rashida, IO of the case. 6. Thereafter, the statement of the appellant/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who has denied the allegations made against him However, in defence, the appellant/accused did not produce any oral or documentary evidence. 7. After appreciating the evidence and hearing learned Counsel for the parties, learned Special Sessions Judge, Almora vide judgment and order dated 20.03.2006 convicted and sentenced the appellant/ accused as discussed above. Against the aforesaid judgment and order, the appellant/accused has preferred the present appeal. 8. To prove its case, the prosecution has examined PW2 S.I. Bahadur Singh Pangti who stated that on 3.1.2005 he along with Constable Lalit Mohan and 4 Constable Prabhakar proceeded for patrolling at 9:40 P.M. While patrolling, as soon as they went down from the stairs, a person was seeing coming from Dharanaula and on seeing the police party, he moved back and started proceeding towards Dharanaula. On being asked to stop by the police party, he started fleeing, however he was arrested by using force at 12:40 A.M. on the Dharanaula way near Ramlila Ground. On being asked the reason of fleeing, appellant-accused confessed that he was having some Charas with him. He further stated that the appellant-accused was asked to be searched before a Gazetted Officer but he told the police personnel that he had faith on them and they might search him. On his search, about 300 grams of Charas was said to be recovered from the possession of appellant-accused which was in the form of sticks. The appellant-accused could not show any licence for keeping Charas with him. Two specimens of seal of 10 gms. each of Charas was prepared and rest of the Charas was also sealed. Fard of recovery Ex.Ka-1 was also prepared on the spot. Chik FIR of this case was prepared by Constable Clerk Hem Chandra Tewari on 04.01.2005 at 5:40 A.M., that Chik FIR is Ex.Ka- 2. Entry was also made by him in the G.D., carbon copy of which is Ex.Ka-3. Recovered Charas is Ex.1 while specimen on bundle of recovered Charas is Ex.2. 9. The statement of P.W.2 S.I. Bahadur Singh Pangti also gets full corroboration from the evidence of P.W.1 Constable Lalit Mohan. 10. P.W.3 is S.I. Rashida who stated that investigation of this case was entrusted to her on 4.1.2005. On 5.1.2005, she inspected the place of occurrence and prepared the site plan i.e. Ex.Ka-4. Report of Forensic 5 Laboratory about the recovered Charas dated 4.2.2005 is Ex.Ka-5. During investigation, she recorded the statements of witnesses and on completion of investigation, she filed the charge sheet, i.e. Ex.Ka-6. She further stated that the appellant-accused is a person of criminal nature and in seven cases, he has been convicted. 11. Thereafter, the statement of the appellant/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who has denied the allegations made against him However, in defence, the appellant/accused did not produce any oral or documentary evidence. 12. Sri Amit Kapri, Adv. i/b Smt. Pushpa Joshi, Adv. for the appellant-accused argued that as per the aforesaid evidence, the case against the appellant-accused is not proved beyond reasonable doubt. I do not find any force in this argument as P.W.2 S.I. Bahadur Singh Pangti has clearly stated in his statement that on 3.1.2005 he along with Constable Lalit Mohan and Constable Prabhakar proceeded for patrolling at 9:40 P.M. As soon as they went down from the stairs, a person was seeing coming from Dharanaula and on seeing the police party, he proceeded to move back towards Dharanaula. On being asked to stop, he started fleeing, however he was arrested by using force on 4.1.2005 at 12:40 A.M. On being asked the reason of fleeing, appellant-accused confessed that he was having some Charas with him. He also stated that the appellant-accused was asked to be searched before a Gazetted Officer but he told the police personnel that he had faith on them and they might search him. On his search, about 300 grams of Charas was said to be recovered from the possession of appellant-accused which was in the form of sticks. The 6 appellant-accused could not show any licence for keeping Charas with him. Two specimens of seal of 10 gms. each of Charas was prepared and rest of the Charas was also sealed on the spot. Fard of recovery Ex.Ka-1 was also prepared on the spot. Besides the above, report given by Assistant Director, Scientific Laboratory, Agra (Ex.Ka-5) also shows that the contraband article sent to the laboratory was found to be Charas. As such, the offence punishable u/s 8 r/w Section 20(B) of the Act is clearly proved against the appellant-accused beyond reasonable doubt and the trial court has rightly convicted and sentenced the appellant-accused as discussed above. 13. Sri M.A. Khan, learned Brief Holder for the State has produced a copy of fax today in the Court sent by In- Charge Inspector, Kotwali Almora in which it is stated that the appellant-accused has been released from jail after serving out the sentence on 3.7.2008. Hence, he submitted that the appeal preferred by the appellant-accused stands infructuous. 14. In view of the above-said discussion, the appeal is devoid of merits and is hereby dismissed. The judgment and order dated 20.03.2006 passed by Special Sessions Judge, Almora in Special S.T. No.1/2005, State Vs. Said Ahmed is affirmed. (Dharam Veer, J.) September 4, 2009 Rdang