GYAN CHAND Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) By this appeal the judgment and order dated 3-3-1993 passed by the 1st Additional Sessions Judge, Varanasi has been challenged. The trial Court had convicted the appellants-Gyan Chand and Lal Chand (hereinafter referred to as 'A-l and A-2' respectively) for the offence punishable under Section 21 of N.D.P.S. Act (hereinafter referred to as the 'Act') and had sentenced them to rigorous imprisonment for ten years and to pay fine of Rs. 1,00,000/- each. The trial Court further convicted Lal Chand (A-2) for the offence punishable under Section 27-A read with Section 29 of the Act and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/-.

(2.) The complainant-K. K. Rai (PW-1), the then Intelligence Officer, Narcotics Control Bureau, Varanasi in the morning of 18-11-1989 had received information that A-1 and A-2 are involved in drug trafficking and were likely to give delivery of certain drugs to somebody on that date. He, acting upon such information, reduced it in writing and sent it to his immediate superior Dy. Director of the Department and thereafter he along with his assistant-Alok Kumar (PW-2) and others proceeded for the place in the locality of Kakarmatta of City Varanasi where they arrived at about 10.40 a.m. They approached the residence of A-1 and A-2 and gave a call to them for opening the door. A-1 when opened the door, K. K. Rai introduced himself and disclosed the purpose of his visit to that place. He also volunteered along with his colleagues that A-l may take their personal search before they could commence the search of the premises occupied by him. The accused did not, however, opt to take search of the PW-2 and other members of the search party and thereafter the complainant along with his colleagues entered the building. Inside the house A-2 was also found present who introduced himself to the search party as brother of A-1. The complainant noticed a bag with green and black stripes. PW-2, Alok Kumar picked up that bag and on opening one polythene packet was found inside, which contained certain brown material. In the bag itself certain weights of 500, 200, 100 and 50 gms. denomination were also found. On inquiry made, accused (A-l) told that brown material was his medicine but subsequently he accepted it as a derivative of Morphine. On further search made by the party, no other contraband was recovered from the house. The complainant-K. K. Rai thereafter on testing the brown powder with his test kit, found it to be heroin. The said contraband weighed 400 gms. The search party prepared three samples out of recovered powder in the weight of 5 gms. (material Ext. I) each and sealed it on the spot before all concerned. The remaining contraband (material Ext. II) along with above weights and the weighing instrument were all kept in the same bag and sealed then and there only. A-1 and A-2 along with all members of the search party and the witnesses (Sri Nath and Chhote Lal) put their signatures on those sealed packets and its recovery memo (Ext. Ka-1) was prepared. The statements of A-1 and A-2 (Ext. Ka-2 and Ka-3) in their own hands and under their signatures, were also obtained by the complainant-K. K. Rai on the spot itself and the statements of public witnesses (Sri Nath and Chhote Lal) (Exts. Ka-4 and Ka-5) were obtained under their signatures on the spot itself. All these formalities and proceedings consumed sufficient time of the search party and the entire formality was over only by 8.00 O'clock in the evening. Thereafter, the arrest of the A-1 and A-2 was effected and they along with recovered contraband were brought to the office of Nar -codes Control Bureau, Varanasi and kept there for the night. The recovered articles were deposited with the official custodian in the office itself.

(3.) The next morning i.e. on 19-11-1989, the accused and the recovered contraband (in sealed condition) were forwarded to the Chief Judicial Magistrate, Varanasi (Ext. Ka-8) and the information of such recovery etc. was sent by the complainant in writing to the Intelligence Officer, B. D. Trivedi, in the office of Dy. Director, Narcotics Control Bureau, Varanasi. On the same day, the sample of the contraband after it was received back from the Court of Chief Judicial Magistrate was sent to the General Manager, Opium and Alkaloid Factory, Ghazipur for its analysis. The samples after its analysis were found to contain heroin. The Chemical Examiner's report (Ext. Ka-11) was received in the office of Narcotics Control Bureau, Varanasi. The complainant thereafter submitted his formal complaint to the Court of Chief Judicial Magistrate on 20-12-1989. On the allegations, as made in the complaint and other materials available before the Court, the appellants were charged for the aforesaid offences under which their convictions have been recorded.