MOHD SHABBIR Vs. UNION OF INDIA

JUDGEMENT

(1.) Both the Criminal appeals arise out of the judgment and order dated. 19.12.2003 hence they are being decided by a common judgment.

(2.) These appeals have been filed against the judgment and conviction order dated 19.12.2003 passed in Criminal Case No. 250 of 1999 (Union of India v. Mohd. Shabbir and Abdul Gafoor), convicting the accused-appellants under Sections 8/21 of N.D.P.S. Act for a period of 14 years R.I. and a fine of Rs. 1.5 Lakhs on each Appellants and in case of default of payment of fine further imprisonment for a period of three years.

(3.) The prosecution case in short is that on 4.7.199 S.T. Mr. Waqar Ahmed received secret information that two or three persons from Calcutta would come to Kanpur on 118 NE Car No. WB-02-A-6628 and the colour of the Car was green and they would smuggle 10 to 15 Kgs. Heroine by concealing the same in secret Chamber of the Car and would go to Calcutta. Sri Waqar Ahmad recorded the secret information in D.R.I.(I) form and consulted the Deputy Narcotics Commissioner, who formed two preventive parties to intercept the smugglers. One party was headed by Mr. S.P.S. Yadav, Superintendent and another party was headed by Mr. R.C. Srivastava, Superintendent. Both the parties left Lucknow on 5.7.1999 for Kanpur-Allahabad-Varanasi highway and kept vigil on the said highway. On 7.7.1999 the informer again informed Mr. Waqar Ahmad that in continuation of his earlier information both the Calcutta persons would proceed to Calcutta today at any time with the heroin concealed in the said N.E. Car. Waqar Ahmad reduced the secret information in writing and presented the same before Assistant Narcotics Commissioner who directed him to join the preventive parties already keeping vigil and were also in contact with the office regularly. Mr. Waqar Ahmad at 9.30 a.m. called two public witnesses namely Surendra Kumar and Ajai Kumar and apprised them about the secret information as well as for the arrest of smugglers and after their consent they took both of them with them and reached at 3.00 p.m. at Jhusi on Kanpur-Allahabad-Varanasi Marg where Mr. S. P. S. Yadav, Superintendent was already present with his party. At 4.00 p.m. on 7.7.1999 both the parties saw that a green N.E. Car is coming towards Allahabad side and the said Car stopped about 50 yards from the parties who were there to intercept the said Car. When the party personnel proceeded towards the said N.E. Car the Driver of the said Car took a turn and raced on the Jaunpur road. The said car was chased by both the parties and after chasing the Car for about two and half hours, the N.E. Carwas seen before Mohanlalganj and after some chase the N.E. Carwas overtaken and intercepted near S.G.P.G.I. On the direction of Mr. S.P.S. Yadav, Mr. D.P. Bhatnagar, Inspector asked the names of the persons in the said N.E. Car. The Driver of the aid Car told his name as Abdul Gafoor, resident of Howrah-Calcutta and the person who was sitting on the back seat disclosed his name as Mohd. Shabir of Calcutta. Mr. D.P. Bhatnagar also introduced himself as well as other members of the parties and disclosed to both persons that they are Narcotics authorities and they have secret information that both of you are smuggling heroin. They were also informed about the legal provision for getting themselves searched before the the gazetted officer or Magistrate and for search of your Car which was refused by them and thereafter they were taken into custody in presence of both the witnesses after compliance of Section 50 of the N.D.P.S. Act and they were asked to sign the memo prepared by them. Thereafter search of the Carwas made but nothing incriminating was recovered but from the-Dicky of the Car there was a particular place which was welded and was painted with yellow colour. There was no proper light as well as arrangement to open the welded portion inside the Dicky of the Car and as it was about 7.30 or 8.00 p.m. and there was no source of light, therefore, the authorities took the Car as well as the accused Shabbir and Gafoor alongwith the public witnesses to their office at Mahanagar and welded portion was cut and opened and from the secret Chamber 11 small packets were recovered. In each of the packets brown powder was packed in polythene. On interrogation Appellants disclosed that the brown powder recovered is heroin and the total recovery of 10.700 Kg. of heroin was found. Both the accused confessed their crime and said that the recovered heroin is to be delivered to one Seraj Khan who is not only the owner of N.E. Car No. WB-02-A-6628 but also real brother-in-law of accused Shabbir who was not found and is still absconding. On these allegations a complaint was filed under Section 8/21 of the Narcotics Drugs and Psychotropic Substances Act (in short 'the Act') and the evidence was led by the parties. After the evidence was led the trial Court considered the evidence and proceeded to convict the accused-Appellants under Section 8/21 of the Act for a period of 14 years R.I. and a fine of Rs. 1.5 Lakhs and in default of payment of fine further imprisonment for a period of three years.