VIJAI KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri D.S.Mishra, learned Advocate assisted by Sri U.B.Singh and Sri Chandrakesh Mishra, learned counsel for the respective appellants, Sri Ashish Pandey, learned counsel for the Narcotics Control Board and Sri B.A.Khan, learned Additional Government Advocate for the State.

(2.) These two above noted criminal appeals have been listed together under the order of this Court dated 20th August, 2019 as they arise out of common judgment dated 3rd July, 2012 passed in Sessions Trial No. 188 of 2003 (State v. Pyare Lal) under Section 8/20/27A/29 of the Narcotics Drugs and Psychotropic Substance Act, 1985 passed by Additional District and Sessions Judge, Court No. 24/Special Judge, Allahabad. Accordingly both the appeals have been heard together and are being decided by this common judgment.

(3.) Briefly stated facts of the case are that on receiving information from some reliable confidential sources, Sri Kaushal Kant Mishra, an intelligence officer of the Narcotics Control Bureau Control, Varanasi landed at Allahabad on 2nd June, 2003 alongwith a team of officers at around 5:00 pm directly at the gate of M/s Gati Transport Private Ltd. a private transport service for carriage of goods and articles (for short transport company). At the very gate of Transport Company, he and his team happened to meet two persons namely, Mrinmay Das Gupta and Sandip Kumar Sharma, who claimed themselves to be employees of the Transport Company. The team of officers led by Mr. Mishra apprised these employees about the purpose of their arrival at Allahabad and persuaded them to be their witnesses, to which they readily agreed. Thus, having obtained their consent, the team alongwith those two witnesses reached at the spot where 20 plywood boxes were lying and they approached the person as well who was standing by side these boxes. Upon an enquiry, he told the team that his name is Vijay Kumar S/o Sukru Ram, a resident of police Station Nizamabad, district Azamgarh and upon further enquiry from him, he informed them that these 20 boxes were full of Ganja (fruiting top of Cannabis plant), a psychotropic substance. He admitted that these boxes belonged to one Vinod Singh S/o Shiv Nath Singh a resident of village Ronwa, Post Fariha P.S. Nizamabad, District Azamgarh, who had asked him to get these boxes released and for that purpose he had been paid Rs. 14,969/- and was also having the papers to get these boxes released, and further that he was directed by said Vinod Singh to get these boxes delivered at his shop situate in Ronwa village. He also informed the team that he was waiting there for a proper carriage to get these boxes loaded for the desired destination. As usual, the officers asked Vijay Kumar that should he wanted these boxes and himself also to be searched in front of a Gazetted Officer or Magistrate, he would be permitted to do so but he refused in writing for the same and authorized the officers of the team to carry out the search. The search was carried out on the spot and said Vijay Kumar also refused to get the independent witnesses to be searched prior to search being carried out. As agreed by Vijay Kumar, the search of 20 plywood boxes was undertaken and these boxes were found fully filled with brown colour leaves etc. and when they were tested on a testing tool kit, the team had carried with it, it was found to be ganja a psychotropic substance. On enquiry, Vijay Kumar admitted to have prior knowledge of psychotropic substance being there inside those boxes and admitted to have knowledge that he was carrying the contraband quite unauthorizedly and that it was a punishable offence under the Act, 1985, however, he claimed that he was doing so for a monthly payment of Rs. 2000/-. The boxes thus were emptied as the material was taken out of the boxes and was all weighed and it all turned out to be 630 Kg in weight. The entire material was kept in 22 jute bags and two sets of samples were collected of 25 grams each from each jute bag. The samples were separately sealed in envelopes marking with separate numbers as S1 and S 2 and were got duly signed by the officers of the bureau who were part of the team, independent witnesses and said Vijay Kumar, one of the appellants before this Court. All the 22 jute bags were properly sealed and numberd from 1 to 22 and papers pasted upon all those were duly signed by the officers, witnesses and the appellant Vijay Kumar. The recovery memo was prepared and was duly signed by the members of the team, two independent witnesses, who claimed to be employees of the Transport Company and also by Vijay Kumar, one of the appellants. Immediately after the task of search and seizure of the boxes and material was accomplished, a recovery memo was prepared on the spot and the information was sent to Varanasi about the other accused namely Vinod Kumar. A team in the leadership of Sri Ram Akbal Dubey of Narcotics Control Bureau Varanasi was constituted and with the help of local police force the team carried out search of person and the house of the said Vinod Kumar in presence of two independent witnesses, namely Shiv Murat Tiwari and Khaderu Ram, both resident of village Dilauri, P.S. Rani Ki Sarai. However, during search carried out of the person and the house of Vinod Kumar no incriminating material was found relating to any contraband including the one in respect of which one of the appellants Vijay Kumar was taken into custody as said contraband was seized at Allahabad on 2nd June, 2003.