BALULAL DAROGA Vs. STATE OF KERALA

JUDGEMENT

(1.) In this appeal filed under Sec. 374(2) Cr.P.C., the appellant, who is the first accused in S.C.No.19/2005 on the file of the Court of the Special Judge (NDPS Act Cases), Vadakara, challenges the conviction entered and sentence passed against him for the offence punishable under Sec. 18(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act).

(2.) The prosecution case is that accused 3 to 5 (A3 to A5) entered into a conspiracy to transport opium from Rajasthan to Ponnani in Kerala. As part of the conspiracy, the fourth accused (A4) loaded 10 bags of opium and concealed it in a secret chamber of his lorry bearing registration no.RJ-06 G-2199. A3 and A5 told A4 that they would wait at Ponnani to receive the contraband. Accordingly, A4 instructed accused 1 and 2 (A1 and A2) to take the lorry from Rajasthan to Ponnani in Kerala. Pursuant to the same A1 and A2 knowing that 10 bags of opium had been concealed in the secret chamber of the lorry, transported the same to Ponnani to be handed over to A3 and A5.

(3.) Crime no.1/2005, Excise Range Office, Sulthan Bathery, that is, Ext.P7 crime and occurrence report was initially registered by PW2, Excise Inspector, Excise Circle Office, Sulthan Bathery against A1 to A3 alleging the commission of the offence punishable under Sec. 18 of the Act. The investigation was conducted by PW7, Excise Circle Inspector, Kalpetta, who on completion of investigation submitted the final report against 5 accused persons. A4 is alleged to be registered owner of the lorry in which the contraband was transported to Kerala. During the investigation the investigating officer filed a report stating the complicity of A4 and A5 in the crime and also incorporating Sec. 29 in addition to Sec. 8 read with Sec. 18 of the Act. Hence, as per the final report the accused persons are alleged to have committed the offences punishable under Sec. 18 and 29 of the Act. A1 and A2 were arrested at the time of seizure and produced before the Court. A3 to A5 never appeared before the Court in spite of repeated non-bailable warrants being issued against them. As per the final report, A3 to A5 were reported to be absconding and hence the case against A3 to A5 was split up and refiled as S.C.No.2/2006 and the case was proceeded against A1 and A2. The trial court after complying with all the necessary formalities contemplated under Sec. 207 Cr.P.C., framed a charge against A1 and A2 for the offence punishable under Sec. 18(b) of the Act, which was read over and explained to the accused persons to which they pleaded not guilty.