AFZAL Vs. UNION OF INDIA

JUDGEMENT

(1.) This is an appeal preferred by the appellant Afzal under Section 374(2) Cr.P.C. against the judgment and order dated 15.03.2004 passed by Special Judge, N.D.P.S. Act, Lucknow, convicting the appellant Mohd. Afzal and one Banwari Lal of the charge under Section 20(b)(ii) and 25 of the N.D.P.S. Act and sentenced the appellant Afzal to rigorous imprisonment for 14 years and a fine of Rs. 1,50,000/- for the offence under Section 20(b)(ii) of N.D.P.S. Act and in default of payment of fine, the appellant will undergo a further rigorous imprisonment for three years.

(2.) The prosecution case, in brief, is that the Assistant Commissioner, Custom on receiving a secret report directed Sri Sanjai Chatterji, Shailendra Mohan Bhatnagar and Debo Prasad Halder to keep surveillance and intercept Ambassdor Car No. DBC/9581 on 28.07.2001 at Lucknow-Barbanki road. In compliance of the above direction, all the above three Inspectors of Custom alongwith two public witnesses Sri Rajiv Dar and R.K. Srivastava kept surveillance at Lucknow-Barabanki road near Gas & Gadget Godown, Lucknow. On 28.07.2001, at about 11.30 A.M., the Ambassador Car No. DBC/9581 was seen coming towards Lucknow and was signaled to stop, but the car sped away. The officers gave a chase on their departmental car and forced them to stop near Sushma Hospital, Lucknow. The car was being driven by accused Banwari Lal and accused Afzal and Ramesh Chandra were sitting on front seat. The officers of the Customs Department disclosed their identity and also disclosed the secret information to the accused and the purpose of interception and also told that Charas is being smuggled by them. In compliance of Section 50 of N.D.P.S. Act, Sri Sanjai Chatterji, Customs Inspector told the each accused individually that they have right to be searched before the nearest Magistrate or Gazetted Officer. The accused consented for the search of their person and car before the Gazetted Officer. On this request of all the three persons alongwith car and public witnesses were brought to the Cutsoms Office at Gomti Nagar, Lucknow and were produced before Assistant Commissioner and Sri Abhay Kumar Srivastava, Superintendent, the gazetted officer of the department. The officers also offered their personal search prior to the search of accused and the car but the accused refused to search the person of the officers. On personal search, Rs. 545 were recovered from Ramesh. Rupees 447 from Afzal and Rs. 47 from Banwari Lal, which were returned to them. On thorough search of the car, 20 polythene packets sealed by the tapes were recovered from cavity specially built in the dash-board of the car and 30 polythene packets sealed by tapes were from another cavity in the Diggy of the car. On opening of these packets, black brown coloured bricks were found in each packet. In 49 packets 4 bricks in each packet and in one packet three bricks were found. All recovered material was weighed and it was found to be 98.765 Kg. All the three persons were arrested and Fird was prepared and the statement of accused under Section 108 of Customs Act was recorded, in which, they confessed their crime and involvement in smuggling of Charas. Sample of Charas was taken and sent to Chemical Examiner Central Laboratory, New Delhi and on chemical analysis it was found to be Charas. Sri V.K. Joshi was appointed as Investigating Officer who recorded the statement of witnesses and filed complaint in the case.

(3.) Accused persons were charged for offence under Section 20(b)(ii) and 25 of N.D.P.S. Act.