MOHD. IDRISH Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Sri Sangam Lal Kesarwani, Amicus-curiae for the appellants, Sri Saghir Ahmad, Sri Rajeev Gupta learned AGAs for the State and Smt. Manju Thakur, State Law Officer.

(2.) This criminal appeal has been filed by the appellants Mohd. Idrish and Madhu Sudan Pandey against the judgment and order dated 15.9.2008 passed by Additional Sessions Judge/FTC Court No. 3, Jaunpur in Special Sessions Trial No. 68 of 2008 (State v. Mohd. Idrish and another) under Section 20 of the NDPS Act, Police Station Gaurabadshahpur, District Jaunpur connected with Session Trial No. 336 of 2008 (State v. Mohd Idrish) under section 25 of the Arms Act, Police Station Gaura Badshahpur, District Jaunpur by which both the appellants have been convicted and sentenced to 10 years rigorous imprisonment and a fine of Rs. 2 lakhs each and in default of payment of fine additional imprisonment of 2 years each under Section 20 of the NDPS Act and appellant no. 1, Mohd. Idrish has been further convicted and sentenced to 7 years rigorous imprisonment and a fine of Rs. 25,000/-, in default of payment of fine 1 year additional imprisonment under section 25 of the Arms Act.

(3.) Before I hear upon the merits or otherwise of the contentions, it will be appropriate for the Court to fully narrate the facts resulting in the conviction of the appellants. On 18.12.2007 while SHO Param Hans Tiwari was on patrol duty in Village Banarhiyabag along with Constables Kailash Nath Pandey, Harish Chandra Gautam and Bhagwat Ram in a government jeep which was driven by one Raj Bahadur Singh he met probationary S.I. Sanjay Kumar Rai, Constable Durg Vijay Singh, Yashwant and Jai Prakash who were also on patrol duty. On meeting each other they stopped and started discussing crimes and criminals. In the meantime PW 1 Param Hans Tiwari received a secret information through police informer that an assignment of Ganja was being transported in a jeep bearing Registration No. UP 52 G 1527 which was coming from the side of Gaurabadshahpur and going towards the Jaunpur and unless prompt action was taken the carrier may escape with the assignment. PW 1 Param Hans Tiwari disclosed the aforesaid information to the police personnel present there and they immediately proceeded to Village Bithar and on reaching there they took position in the petrol pump and put a road block. After few minutes they saw a jeep coming from the side of Gaurabadshahpur in the light of the petrol pump and torch which was signalled by the police informer to the jeep by which contraband articles were being transported. The members of the police party promptly stopped the jeep in which two persons were found seated, one on the driver's seat and the other on a gunny bag put in the rear portion of the jeep. After stopping the the jeep they got it parked on the roadside. Both the occupants of the jeep remained seated. On being quizzed by the police the person sitting on the driver's seat disclosed his name as Mohd. Idrish son of Mohd. Lagan Sai resident of Village Panchpatra, Police Station Revealganj, District Chapra Bihar. His search led to recovery of one country made pistol with one loaded live cartridge from the left pocket of his trouser which he was wearing at the time of his search. One square shape bundle which was covered with a blanket was found lying on the floor of the jeep near its controls in the front portion of the jeep. Mohd. Idrish disclosed that ganja was packed in the bundle and he had kept it as a sample. The person sitting on the gunny bag in the rear portion of the jeep told the patrol party that his name was Madhusudan Pandey @ Baba son of Shivshankar Pandey Village Revealganj, District Chapra Bihar. He confessed that since the police party had caught them no useful purpose would be served in hiding anything. He disclosed that apart from the gunny bag kept in the rear portion of the jeep on which he was sitting, he had concealed 17 other bundles of Ganja in the specially designed secret cavity in the jeep. He further confessed that both he and Mohd. Idrish were involved in the business of illegal drug trafficking which was their only source of livelihood and they were carrying the assignment of ganja in their jeep for selling the same in Sultanpur. Both the accused were informed by the searching officer that they would be searched before a magistrate or a gazetted officer as per the provisions of NDPS Act on which they expressed their willingness to be searched by the members of the police party and thereafter gunny bag on which accused Madhusudan Pandey @ Baba was sitting was opened and it was noticed that the smell emanating from the substance which was packed in the gunny bag appeared to be that of ganja. The search of the specially designed secret cavity in the jeep led to recovery of 17 other bundles of ganja. Total number of 19 bundles of ganja were recovered from the jeep, each bundle was marked serially and weighed separately. Upon weighment the individual weight of each bundle was found to be as here under : <FRM>JUDGEMENT_36_LAWS(ALL)6_2017.html</FRM> Two samples of 500 gms each were drawn from bundle no. 1 and bundle no. 19 and packed in a golden brown colour plastic, sealed and seized on the spot. The samples were sent to the forensic expert for chemical examination. The report of the forensic expert dated 3.3.2008 indicating that the samples contained ganja was brought on record as Ext. Ka 6. Impression of specimen seal was prepared on the spot. The country made pistol with one live cartridge in its barrel recovered from Mohd. Idrish was packed and sealed. The accused were required to produce the licence for possessing Ganja and when they admitted that they had no such licence they were informed that they had committed an offence under Section 8/20 of the NDPS Act. The accused's jeep and the contraband articles recovered therefrom and the country made pistol and live cartridge recovered from the appellant no. 1, Mohd. Idrish were also seized. Although a huge crowd had gathered on the road side at the time of the search of the vehicle but none agreed to witness the recovery. On being requested by the police personnel they walked away without disclosing their names and addresses. Memo of search, recovery and arrest of the appellants was prepared on the spot by S.I. Sanjay Kumar Rai on the dictation of PW 1 Param Hans Tiwari in the light of the petrol pump and torch and signatures of the accused were obtained thereon. Carbon copies of recovery memo were given to the accused and the information regarding their arrest and recovery of contraband articles from the jeep and its seizure was given to the higher official through mobile. On the basis of the aforesaid recovery case crime no. 773 of 2007, under Section 8/20 of the NDPS Act (State v. Mohd. Idrish and Madhusudan Pandey) was registered against both the accused-appellants while case crime no. 774 of 2007, under Section 3/25 of the Arms Act (State v. Mohd. Idrish) and case crime no. 775 of 2007, under Section 3/181/197/207/192 M.V. Act (State v. Mohd. Idrish) were registered against the accused-appellant Mohd. Idrish alone at Police Station Gaurabadshahpur, District Jaunpur on 19.12.2007 at 00:15 hours. Chek FIR Ext. Ka 2 and necessary GD entry Ext. Ka 3 were prepared by Constables Tanveer Ahmad and Ram Ashish Yadav respectively. The investigation of the case was entrusted to S.I. Hari Nath Tripathi who visited the place of occurrence and after inspecting the same prepared its site plan Ext. Ka 4. He obtained sanction for prosecuting the appellant Mohd. Idrish under section 25 of the Arms Act from District Magistrate Jaunpur Ext. Ka 8. After completing the investigation he submitted charge sheet against both the accused under Section 20 of the NDPS Act Ext. Ka 6 and a separate charge sheet against Mohd. Idrish under Section 3/7/25 of the Arms Act.