Arvind Kumar Mishra-I, J.:— Heard Sri. Jitendra Pal Singh, learned counsel for the appellant and Sri. Sanjay Kumar Rajbhar, learned A.G.A. for the State and perused the record of this appeal.

2. By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order dated 06.10.2007 passed by Additional Sessions Judge, court no. 4, Pilibhit in Special Trial No. 19 of 2007, State v. Vijay Pandey, arising out of case crime no. 1666 of 2006, police station-Puranpur, District-Pilibhit, whereby appellant- Vijay Pandey- has been convicted and sentenced to undergo 15 years R.I. coupled with fine of Rs. 1,50,000/-, with default stipulation to suffer additional rigorous imprisonment for three years.

3. Relevant facts giving rise to this appeal, as discernible from the record, appear to be that S.I. Sri. J.P. Singh Parihar concerning police station-Puranpur, district Pilibhit lodged written report on the basis of arrest and recovery of appellant-Vijay Pandey on 22.01.2006 at 8.45 A.M., which contained description that the informant-S.I. Sri. J.P. Singh Parihar along with Constable-Prahalad Singh were busy in search of wanted offenders and were present at the Railway-Crossing on Sherpur Road on 22.12.2006, when they received information through informer at about 6.10 A.M. that Vijay Pandey of Shahukara Linepar is about to move somewhere, is possessing 10 kg. of ‘doda’ and he can be apprehended, if quick action is taken. Informant-S.I. J.P. Singh Parihar-acted on the tip off information and tried to avail public witnesses, but no one was ready to be a witness. Therefore, the informant along with the police constable and the informer reached to the house of the accused Vijay Pandey where informer pointed out towards the house and went away. No sooner than the informant and the constable reached near the house, when a man holding white plastic sack in his right hand came out of the house and after sighting the police, turned to the left side of the house and tried to run away from the scene, but he was apprehended after short chase by the informant around 6.40 A.M. along with the sack.

4. On being inquired, he spelled his name Vijay Pandey s/o Gursharan Pandey, resident of Mohalla-Sahukara Line Par, Gautiya, Police Station Puran Pur, District Pilibhit. When further asked that information has been received that he is possessing ‘doda’ in his sack, therefore, if he so wishes, the search may be conducted in the presence of a Magistrate or a Gazetted Officer, but accused-Vijay Pandey-told that his search may be conducted by them and he has no objection, whereupon, the search was made by the informant in the presence of the accompanying Constable. Thereafter, after search seven packets were recovered from inside the plastic sack. Weighing equipment was arranged by the informant and the recovered substance was weighed, then 2½ kg. each substance was recovered from two green packets. On opening the same, it was found to be ‘doda’. Similarily, from the yellow polythene packet-1 kg. ‘doda’ and 2 kg. each ‘doda’ was also found into two separate yellow polythene packets. The total substance weighed 10 kgs. Since this act was covered under Section 18/20 N.D.P.S. Act and was punishable as such, the accused was arrested after being told about aforesaid fact and the recovered substance was kept inside the plastic sack and was sealed on the spot. Arrest and recovery memo was prepared on the spot. Its copy was prepared and was handed over to the accused. Local public was asked to stand witness to the fact of recovery and arrest, but no one was interested. This memo of arrest and recovery is Exhibit Ka-1. F.I.R. was lodged at Police Station-Puranpur by the informant on the basis of recovery memo, Exhibit Ka-1.

5. The Check FIR was entered at Case crime No. 1666 of 2006, under Section 18/20 N.D.P.S. Act at Police Station Puranpur at 8.45 A.M., which is Exhibit Ka-6. Consequently, relevant entries were made in the concerned General Diary and the investigation of the case ensued and was taken over by S.I. Afsar Khan on 22.12.2006-the day on which the case was lodged. He recorded the statement of the concerned Constable and also took note of contents of the arrest memo and the Check FIR and the concerned General Diary entry and after recording the statements of witnesses, prepared the site plan Exhibit Ka-4 and the sample was taken out from the recovered substance by the Circle Officer and was conveyed over to the Forensic Science Laboratory at Agra for examination by Constable Shamsher Ahmad. The Chemical Examination Report was obtained and after completing the investigation, charge-sheet Exhibit Ka-5 was filed against the accused. The Chemical Examination Report confirmed the recovered substance to be ‘Doda Powder’.

6. The Investigating Officer has also proved the entry made by the concerned Constable in the Check FIR and the General Diary, whereby case was registered against the accused. He has also proved relevant papers Exhibit Ka-7 to 10 etc.

7. The accused was charged under Section 8/15 N.D.P.S. Act for possessing illicit contraband 10 kgs. doda powder. The accused denied the charge and claimed to be tried.

8. The prosecution to prove its case examined P.W.1 S.I.J.P. Sigh Parihar. He is the informant of this case. P.W.2 is Constable Shamsher Ahmad. P.W.3 Constable Prahalad Singh is a witness of fact, who accompanied the informant on 22.12.2006 and effectuated recovery from the accused. P.W.4 is S.I. Afsar Khan, who is the Investigating Officer of this case. He has prepared the site plant, Exhibit Ka-4 and after completing the necessary formalities filed the charge sheet Exhibit Ka-5 against the appellant.

9. Statement of the accused was recorded under Section 313 Cr.P.C., wherein claim was raised that he has been falsely implicated in this case. He denied any recovery having been made from him. He submitted that he runs grocery shop near police out-post where police personnel used to buy articles on credit, when asked for payment, they felt offended and falsely implicated him in this false case of recovery.

10. The accused did not lead any evidence in defence.

11. The court below after considering the merit of the case recorded conviction for the charge under the aforesaid section of N.D.P.S. Act and passed the sentence of 15 years R.I. coupled with fine Rs. 1,50,000/- with default stipulation to suffer additional rigorous imprisonment for three years.

12. Resultantly, this appeal.

13. The contention has been raised that there is no independent witness in support of the recovery of contraband-doda powder-from the possession of the accused. The recovery is vitiated on account of violation of mandatory provisions of search contained under Section 50 of the N.D.P.S. Act. The recovered substance was not produced in court and the court wrongly anticipated weeding out of the same without any basis. Though, it is correct that accused is a previous convict and in two previous cases he has been sentenced to imprisonment for 7 years and 5 years, respectively. The recovered contraband-doda-was less than the commercial quantity for which maximum punishment is 10 years, but the accused has been erroneously and illegally punished for 15 years R.I. for no worthy reason. Lastly, he took specific plea that the police personnel used to take articles from his grocery shop, but they did not make payment for the same, when the accused asked for payment, he was roped in, in this case.

14. In reply, the learned A.G.A. has submitted that accused is pre-convict and has been convicted previously in two cases concerning N.D.P.S. Act. The parameter and the guidelines applicable for pre-convict relating to the sections of Penal Code, 1860 are not applicable in the cases pertaining to the NDPS Act. It can be easily observed that in both the convictions, the appellant was admitted to bail; and after bail, he again engaged himself in the commission of crime pertaining to N.D.P.S. Act for the third time. It was his third offence, which shows that he is a habitual offender of transporting of narcotic-drugs. He further submits that all the mandatory provisions prescribed in the N.D.P.S. Act have been complied with in totality. He added that recovered substance was rightly recovered and sample of the same was taken and sent for chemical examination, whereupon, it was found to be ‘doda power’ weighing 10 kg.- which was infact recovered from the possession of the accused. He further submits that sentencing was done accordingly to the provisions of N.D.P.S. Act and the trial court has rightly recorded punishment for 15 years to the appellant by virtue of mandate contained under Section 31 of the N.D.P.S. Act. Lastly, he added that the prosecution has succeeded in proving the charge against the appellant beyond all reasonable doubts, as the prosecution witnesses have consistently supported the prosecution case as spelt out in the first information report, which stands further corroborated by the report of the Forensic Science Laboratory, Agra, which confirmed the recovered substance to be ‘doda powder’.

15. Also considered the rival submissions.

16. The moot point that arises for adjudication of this appeal relates to fact whether the prosecution has been able to establish the charge beyond reasonable doubt against the accused?

17. Upon careful scrutiny of the record, the testimony adduced and particularly the documents on record and the very foundation of the case-the fact of arrest and the recovery, memo-Ext. Ka-1, it is reflected that on 22.12.2006, S.I. Sri. J.P. Singh Parihar-PW-1-the informant accompanied by constable Prahlad Singh were on duty in search of wanted criminals, when they received tip off information around 6:10 a.m. through an informer that Vijay Pandey s/o Gursharan Pandey, resident of Mohalla-Sahukara Line Par, Gautiya, Police Station-Puranpur, District-Pilibhit is in possession of doda powder and is about to convey some destination and in case quick action is taken, he can be apprehended. Acting on this information, S.I. Sri, J.P. Singh Parihar tried to arrange public witness, but no one was willing for being a witness. Therefore, the informant along with Constable Prahlad Singh and the informer reached near the house of the accused where the informer pointed out towards the house and moved way from the scene. When S.I. Sri. J.P. Singh Parihar and the constable Prahlad Singh arrived at the house of the accused, then a person was sighted on the northern left side of the house. The sight of the police frightened him and he tried to run away from the scene, when he was caught around 6.40 A.M. on 22.12.2006 after a little chase for about 20 paces by both-S.I. Sri. J.P. Singh Parihar and the Constable Prahlad Singh-around 6:40 a.m. on 22.12.2006. On being asked the person spelt his name, as Vijay Pandey s/o Gursharan Pandey resident of Mohalla-Sahukara Line Par, Gautiya, Police Station-Puranpur, District-Pilibhit. When asked by the police that they have received information that he is possessing ‘doda’, and in case he wants his search to be carried out in the presence of magistrate or a gazetted officer, then they may be called there, but the offer was declined and trust was reposed by the accused in the police party itself, whereupon, search of the accused was made, one white sack was recovered from his hand whereupon, it was inscribed ‘Rajbhog Khas Aap Ke Liye Maida’, wherein, seven packets were recovered, weighing equipment was arranged and it was brought by Constable Prahlad Singh, then these packets were weighed, 2½ kg. of substance/doda was found in two green packets. These were opened, then doda was suspected, one yellow polythene 1 kg doda was also recovered and in two separate yellow polythene packets weighing 2 kg each were found. The total substance/doda weighed 10 kg. This act being an offence under Section-18/20 N.D.P.S. Act. Reason for arrest was told by the police to the accused and he was arrested and the recovered material was again placed inside the sack and the sack was sealed and recovery memo was prepared on the spot and copy whereof was handed over to the accused and it was signed by S.I. J.P. Singh Parihar, Constable Prahlad Singh and also endorsed by accused-Vijay Pandey.

18. The case was investigated by P.W.-4-S.I. Afsar Khan, who inspected the spot, besides recording statements of various witnesses and after obtaining chemical examination report of the samples sent for examination, he filed charge-sheet-Ext.Ka-5 against the accused. He also has prepared the site plan-Ext. Ka-4.

19. To prove the case, the prosecution produced witnesses of fact PW-1 S.I. Sri. J.P. Singh Parihar and PW-3 Constable Prahlad Singh. Both witnesses of facts have been cross examined on vital aspects of recovery regarding sealing of the contraband of the recovered substance on the spot and the answer given are found to be satisfactorily giving credence to the fact of recovery and arrest of the accused on the spot around 6:40 a.m. on 22.12.2006.

20. Contention has been raised that there is violation of Section-50 of the N.D.P.S. Act.

21. Obviously, after tip off information was received, the very same day on 22.12.2006 around 6:10 a.m., the possibility was expressed that in case, quick action is taken, accused can be apprehended, otherwise he is likely to move away with the contraband. S.I. J.P. Singh Parihar-PW-1 tried to arrange public witness, but no one was ready to stand witness to the fact of recovery. The informant S.I. J.P. Singh Parihar-P.W.-1 rushed to the spot without any delay, and after the house of the accused was pointed out by the informer both-J.P. Singh Parihar-PW-1 and Constable Prahlad Singh reached to the house where they sighted one person holding in his hand a white sack, whereupon, he tried to flee away from the scene after having sighted the police party, but was caught after a little chase upto about 20 paces away from his house. When asked about possession of the contraband, the accused admitted the same, then option was given to him if he wishes to be searched in the presence of the Magistrate or a Gazetted Officer, which he declined and reposed trust in the police party itself, then search was made. On search being made seven polythene packets were recovered from inside the white sack. On weighing the seven recovered packets, the aggregate weight of the contraband/substance was found to be 10 kg in all.

22. Here, it can be observed that the search cannot be confined to the search of the person as is the case herein in hand because it was the sack recovered from the hand of the accused which the accused was holding at the time of his apprehension by the police-strictly speaking this aspect removes doubt regarding factum of search of person.

23. Next, option to be searched before a Magistrate or a Gazetted Officer was given at the appropriate time prior to the search being made but the offer was declined by the accused. Merely, because some description does not find place in the recovery memo-Ext. Ka-1-to the ambit that prior to the search, the police personnel did not carry out inter-se search would not be fatal, for the reason that both the witnesses of fact-J.P. Singh Parihar P.W.-1 and Constable Prahlad Singh PW-3 have been cross examined on this point and they have testified that prior to search, they had made search inter se, therefore, mere non mention of fact of inter se search would not render the search illegal or fatal.

24. In so far as sampling of the recovered substance is concerned, obviously it has emerged in the testimony of the investigating officer S.I. Afsar Khan-PW-4 that the sampling was done by the Circle Officer and the substance was then sealed by the seal of the circle officer himself, therefore, sampling process cannot be doubted that way.

25. So far as, fact of safe conveyance of the sample to the Forensic Science Laboratory is concerned, that very aspect, has been satisfactorily proved by Constable Shamsher Ahmad PW-2. He has categorically stated that he obtained the sample from the police station and took the same to the Forensic Science Laboratory, Agra and entry of the same was noted in the General Diary of date 14.01.2007 at Serial No. 16 at 8:20 hours. Similarly, the entry of return journey was also noted in the concerned General Diary at Serial No. 29 of date 17.01.2007 at 2:50 p.m. He has categorically stated that the substance was taken in safe and sealed condition to the Forensic Science Laboratory and no tampering was made and it was so handed over at the Forensic Science Laboratory. Therefore, on the point of sampling of the contraband substance and safe conveyance, the testimony inspires confidence and there is nothing, which may create any doubt regarding non-compliance of mandatory provisions of the N.D.P.S. Act so as to render the same doubtful.

26. Insofar as, contention regarding enhanced punishment is concerned, then obviously bare perusal of the impugned judgment and order of conviction itself it indicative of fact that the accused was previously convicted under the provisions of N.D.P.S. Act (8/15) and was convicted in two Special Sessions Trial no. 30 of 2007 (State v. Vijay Pandey) and 42 of 2005 (state v. Vijay Pandey), wherein, he has been sentenced to six years imprisonment and five years rigorous imprisonment coupled with fine respectively. Now, the present conviction is the third conviction and the sentence that can be awarded on account of previous conviction shall be the half of the maximum sentence prescribed, then it is gathered by virtue of Section 31 of the N.D.P.S. Act that the maximum prescribed sentence would be a period which may extend up to ten years and half of 10 years period shall be fixed to five years period, for each conviction. Considering from that angle the accused is liable to be imposed with the sentence of imprisonment for 15 years. That way imposition of sentence for 15 years is justified and the same legal aspect has been rightly taken into account by the trial court while imposing sentence on the appellant.

27. In view of above, it cannot be said that the enhanced sentence is violative of the provisions of the N.D.P.S. Act.

28. The learned trial Judge while appraising the facts and circumstances of the case and evaluating testimony of the prosecution witnesses has rightly convicted the accused and passed just sentence, which finding of conviction and sentence is upheld in this appeal. Consequently, the appeal sans merit and is accordingly dismissed.

29. In this case, the appellant is in jail. He will suffer remaining part of his sentence.

30. Let a copy of this order be certified to the concerned trial court for its intimation and follow up action.