SHRASWATI Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Shri Piyush Kumar Singh, learned Counsel for the appellant and Ms. Nikita Mishra, learned A.G.A. for the respondent State.

(2.) This criminal appeal under Sec. 374 (2) of the Code of Criminal Procedure, 1973 has been preferred by the appellant, Smt. Shraswati, challenging the judgment and order dtd. 27/1/2017 passed by the Additional Session Judge, F.T.C.-II, Bahraich in Special Sessions Trial No. 48 of 2012 : State of U.P. vs. Smt. Shraswati, arising out of Case Crime No. 403 of 2012, under Ss. 8/17/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'N.D.P.S. Act, 1985'), police station Rupaideeha, district Bahraich, whereby the appellant was convicted under Ss. 8/17/20 N.D.P.S. Act, 1985 and sentenced him to undergo 12 years' rigorous imprisonment and a fine of Rs.1,25,000.00 and in default of payment of fine to undergo additional one year simple imprisonment.

(3.) The prosecution case as per the recovery memo (Ext. Ka.1), is that on 29/7/2012, at 15.00 hours, an information was received from reliable sources that one Nepalese woman wearing red saree would reach to India from Nepal via Rupaideeha main road with opium. Taking this information seriously and on the direction of Assistant Commandant Shri Ashwani Singh, S.I. Janak Singh along with Constable Ganesh Singh, Umesh Prasad Yadav, Neeraj Kumar Srivas, Suvita T., Neetu Pal, Sunita and Shyam Pratap Singh had constituted a special search team; reached at the check post of Armed Border Force located at Nepalganj-Rupaideeha main road along with informer; and started waiting there for the said woman to come. Around 17.15 hours, resembling the description given, one Nepali woman was seen coming from Nepal to India on a a rickshaw. Upon a signal of the informer, the said Nepali woman was stopped by the woman constable for search. During search, something seemed to be tied around the waist of the said woman. Thereafter, following the orders of Human Rights and High Court, the said woman was told that bringing and carrying opium anywhere is an offence under Ss. 8/20/17 of N.D.P.S. Act. The said woman was asked that whether she wants her search to be made before Magistrate or any other place, then, the said woman told that when it is certain that she is carrying opium then they may take the search. Thereafter, on the spot, consent form was got prepared; it was read over to her; and got her signature/thumb impression on it. Thereafter, in the presence of Assistant Commandant, woman Constable Suvita T. and Sunita, who were present on the spot, searched each other but no incriminating material was found from them. After that, according to the order of Assistant Commander, Sunita T. was asked to search the said woman. On being asked during the search, the said woman stated her name as Saraswati wife of Hom Bahadur, resident of Ghorai New Bazar Gawisa Gorai, district Dang Nepal, aged about 28 years, and from her search, apart from the opium tied near the waist in red cloth, nepali currency amounting to 100/- and 20/- was recovered. After testing the recovered opium with the available drug testing kit, prima facie opium was found. Thereafter, on being weighed with the available beam scale, total weight of the recovered opium was 3kg 500gram. From the recovered opium a sample of 24x2 grams were drawn and the samples were sealed in a white cloth with the seal of SSB (Shashatra Seema Bal). Upon enquiry, the Nepali woman said that in the morning one man, namely, Pravesh Budha came and said her that if she delivers the maal (opium) to Rupaideeha (India) bus stop, he will give her nepali currency amounting to 6000/- and on this assurance, she agreed to do this work. Thereafter, on completing all necessary formalities, she was handed over to Police Station Rupaideeha for further action under N.D.P.S. Act. The copy of the recovery memo was read over to the appellant and her signature/thumb impression was taken on it. A copy of the recovery memo (Ext. Ka.2) was also handed over to her, but she torned it and threw away.