RAJU GURANG Vs. UNION OF INDIA

JUDGEMENT

(1.) M. K. Mittal, J. This appeal has been filed by appellants Raju Gurong and Jang Bahadur Vishwakarma against the judgment and order dated 28-7-2001 passed by the then Sessions Judge, Siddharthnagar in Special Criminal Case No. 31 of 1998 whereby the appellants have been found guilty and convicted under Sections 20 (b) (2) and 23 of N. D. P. S. Act (hereinafter referred as an Act) and have been sentenced to undergo rigorous imprisonment up to 10 years and fine of Rs. 1,00,000/- has also been imposed on them with default stipulation. In case they fail to deposit the fine they will have to further undergo rigorous imprisonment for two and half years under each section and this default sentence shall be consecutive. Appeal has been filed on 27-1- 2006.

(2.) BRIEF facts as disclosed in the complaint filed by the Union of India through Vinay Kumar, Inspector, Land Customs Station Barhni, District Siddharthnagar are that complainant alongwith other Inspectors and independent witnesses was on routine checking duty at L. C. S. , Barhani, District Siddharthnagar. On 18- 7-1998 at about 12. 30 p. m. , two young Nepali youths arrived at the customs barrier from Nepal side. They appeared to be suspicious and the customs officer stopped them and introduced themselves to those persons and told them that they had suspicion that they were carrying contraband goods with them and they would be searched by way of precaution. The customs officers also told them if they so desired they could be taken before a Gazetted Officer or a Magistrate for their search. At this stage those two persons told the customs officers that there was no need of checking them by a Magistrate or the Gazetted Officers and that they could search them. On interrogation the two Nepali youths disclosed their names and address as Raju Gurang s/o Kancha Gurang, Jang Bahadur Vishwakarma s/o Late Bhairo Bahadur Vishwakarma R/o Phurkue Palung, Gaon Vikas Samiti, Ward No. 9 Vajra Vaharahi, Post Daman, District Makvanapur Narayani Anchal (Nepal ). Search of accused persons was taken in presence of independent witnesses and it was found that cloth packets in form of belt were tied around the waist of the accused persons and on feeling those belt something hard was noticed and that belt was taken out and on opening the packets it was found that those packets contained some hard substance wrapped up in black tapes. Six packets were recovered from the pockets of the belt of the accused Raju Gurang and five packets from the accused Jang Bahadur Vishwakarma and on opening these packets pieces of black colour emitting strong smell were found and it was noticed that these were pieces of Charas of Foreign origin. Accused also admitted that material was Charas. The packets as recovered were weighed and the six packets recovered from appellant Raju Gurang weighed two kilograms and the five packets of Charas recovered from accused Jang Bahadur Vishwakarma also weighed two kilograms. The value of the Charas was estimated of Rs. 1. 20 lacs. Some quantity of Charas was taken from all the eleven packets of the Charas to from sample packets and five samples of recovered Charas were duly prepared in packet and sealed in different envelopes. All the sealed packets were duly signed by the appellants, witnesses and the customs officers. The remaining Charas was kept into card board packets separately and sealed in a lion cloth bag. These packets were also signed by the officers of the customs department, accused persons as well as the witnesses. The tapes and the cloths were separately sealed in the envelope and these envelopes were also signed by these persons. Two tickets of Nepali Roadways Nos. 389283 and 33348 and Rs. 489 of Nepali Currency were also recovered from appellant Raju Gurang and Rs. 510 of Nepali Currency were recovered from Jang Bahadur Vishwakarma. They were also separately sealed. The Panchnama of these recovered and seized items were duly prepared and signed by all the accused persons and the witnesses. The accused persons knew very little Hindi and the services of witness Rampati Upadhyay were taken as interpretor. The accused voluntarily made their statement before the customs officers on 18-7-1998 and were taken to Superintendent Customs on 19-7-1998 where also they made their voluntarily statement. According to the prosecution case, accused admitted their arrest and recovery of Charas, tickets and currency notes from them. They also told that they were required to go to Delhi by one Kesh Bahadur Gurang residents of Kathmandu, who was to accompany them and there they had to deliver the material and were to be paid Rs. 1,000 each. However, they could not disclose the name of the person to whom the material was to be delivered in Delhi.

(3.) ACCUSED were examined under Section 313, Cr. P. C. They denied the prosecution case and contended that no recovery was made from them. They also denied that any sample was taken as alleged. According to accused Raju Gurang, he was coming to India in search of some work but was intercepted by some officer and was challaned. ACCUSED Jang Bahadur Vishwakarma stated that his thumb mark was forcibly taken on the papers. The accused, however, did not adduce any evidence in their defence.