GULAM NURMAMAD THEIM Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These appeals are filed under section 374 of the Code of Criminal Procedure, 1973 against the judgement and order passed by the learned Special Judge, Bhuj (Kutch) in Special Case No.44 of 1996 dated 30.9.1998, whereby the learned Judge was pleased to convict the appellant in each of these appeals under section 22, 23 with 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act") and under section 120(B) of Indian Penal Code (hereinafter referred to as "IPC") and awarded sentence of rigorous imprisonment for 10 years and fine of Rs.1 lakh, in default simple imprisonment for 2 years for the offences under section 22 of the NDPS Act and section 120(B) of the IPC. While for the offences under sections 23 and 28 of NDPS Act and under section 120(B) of the IPC rigorous imprisonment for 10 years and fine of Rs.1 lakh, in default simple imprisonment for 2 years. The learned Judge was pleased to order the sentences to run concurrently and the accused be given benefit of set off.

(2.) The case of the prosecution is that on 20.3.1996 the vessel named Safina Noor Madina bearing registration no.BDI-13/9 arrived at Tuna Port from Jam Salaya. It was to leave for Sharjah after loading livestock. During the course of routine rummaging of the aforesaid vessel on 22.3.1996, the officers of the Customs Shore Guard, Tuna (Kutch) and the officers of Kandla, Customs recovered 22,400 tables of Diazepam (Volume 10) which is a psychotropic substance as defined under clause XXIII of section 22 of the NDPS Act which is also shown at serial no.43 of the Schedule of the said Act. The Customs staff consisting of one Mr.B.G. Jhala, Custom Supdt.; Mr.B.M. Vyas, another Custom Supdt.; Mr.C.B. Meena, Custom Inspector; Mr.M.L. Chauhan, another Custom Inspector along with sepoys of the Customs Department went for routine rummaging of the vessel at Tuna Port at about 3.30 PM. They found tandel, Abu Amad Ker and other 15 seamen on Board. They inquired the name of each of them and also inquired as to whether they have any goods which is in a prohibited category. The tandel and the staff informed that they do not have any such goods. But while inquiring from the appellant, original accused no.1, his conduct was found little suspicious. Therefore, he was inquired as to where he has kept his luggage. He informed that he has kept his luggage in 'Fanna' of the vessel, i.e. the front portion of the vessel. The officers went to that part of the vessel and saw his luggage. He was asked to bring that luggage on the deck. His luggage consisted of a trunk (iron) and a bedding. On inspection of the trunk which contained only clothings, nothing objectionable was found. On opening the bedding, a cream coloured 'thaila', i.e. cotton bag having design of strips -- red, green, yellow, black and violet colours, stitched with a thread was found. On opening a part of the thread stitches, it was found that it contained diazepam tablets I.P. As 'diazepam tablets' fall in the category of prohibited drug, it was decided to carry out further procedure in presence of Panchas.

(3.) The remaining 22,370 diazepam tablets were kept in the respective boxes in the same position as they were. The same were placed back in the 'thaila'. The opened opened portion of the thaila was stitched back with a thread. Thereafter, a paper seal was applied on that thaila on all the four sides and on that paper seal the signature of Panchas, tandel Abu Ahmed Ker, Custom Inspector, Meena and left hand thumb impression of Gulam Nurmamad Theim was obtained. Paper seal was applied with the help of gum, with due care to see that nobody can take out any tablet without breaking open the said seal. Thereafter, a thread was tied on the said thaila and on the knot of that thread, a wax seal bearing the aforesaid inscription was applied. Thereafter, appellant - accused no.1 - Gulam Nurmamad Theim and tandel of the vessel were served with summons to remain present at Customs office, Tuna. In the office copy of the said summons, signature of the tandel and thumb impression of the appellant was obtained. After serving with summons, the muddamal which was recovered was brought to the office of the Shore Guard. It was kept in the cupboard. The cupboard was locked and key was kept with Mr.B.G. Jhala, Supdt. of Customs. The Custom Inspector, Mr.Meena made a seizure report under section 57 of NDPS Act to the Assistant Custom Collector, Bhuj. The appellant was allowed to remain on the vessel under surveillance. On 23.3.1996 the statements of the appellant and the tandel of the vessel under section 67 of the NDPS Act and under section 108 of the Customs Act were recorded. They were also informed that if they give any false information in the statements, action will be taken under the relevant provisions of IPC. After recording the statements of the appellant and the tandel of the vessel they were served with the summons to remain present on 24.3.1996 at the Customs Divisional Officer, Bhuj, for recording further statement. The office copy of the said summons bears thumb impression of the appellant, accused no.1 and the signature of the tandel of the vessel. On 24.3.1996 under section 67 of the NDPS Act and section 108 of the Customs Act. Further statements were recorded. The authorities on being convinced from the statements that an offence is committed under the NDPS Act, the Custom Inspector, Mr.Chauhan was directed to arrest the appellant, accused no.1. Mr.Chauhan, Custom Inspector after preparing arrest memo, arrested appellant, accused no.1 on 24.3.1996 at 6.15 PM. Thereafter, the appellant was produced before the learned Chief Judicial Magistrate, Bhuj with a production report. After the arrest, Custom Inspector, Mr.Chauhan made a report to his immediate superior (Supdt. of Customs) on 24.3.1996 itself, who in turn made a report to the Assistant Commissioner of Customs.