LAWRENCE JOHN DOWSER Vs. UNION OF INDIA

JUDGEMENT

(1.) Lawrence John Dowser, aged about 35 years, who claimed to be a Science Graduate and was a Canadian national was found in possession of 7.700 grams of Heroin in Room No. 207 of Hotel Buddha Ram Katora, Police station Chetganj, District Varanasi. He was accordingly convicted under Section 21 of the N.D.P.S. Act and was sentenced to undergo R.I. for a period of the ten years and to pay a fine of Rs. One lac and in default of the payment of the same to further undergo R.I. for a period of two years vide Judgment and order dated 30-4-1994, passed by Sri Chandra Prakash, the then VIIIth Additional Sessions Judge, Varanasi. Feeling aggrieved by the said judgment the appellant Lawrence John Dowser has come in appeal up before this Court.

(2.) The prosecution claimed that R. K. Singh, P.W.1, who was then posted as Intelligence Officer at Narcotics Control Bureau, Varanasi received information on 14-5-94 to the effect that a Canadian national named Lawrence John Dowser was staying at Buddha Hotel, Ram Katora, Varanasi and was involved in illicit trade of selling Heroin. He made a memorandum of the said information and informed the Director Narcotics Control Bureau, Varanasi. Mr. O. P. Rana, Assistant Director, Narcotics Control Bureau, Varanasi headed the raiding party which consisted of V. K. Singh, Inspector, Central Excise, PW. 2, R. K. Singh, P.W.1, Shivaji Srivastava, R. K. Srivastava, H. C. Yadav and S. N. Tripathi. The raiding party reached Buddha Hotel at about 6.00 P.M. on 14-5-93 and contacted Govind Ram Srivastava, (P.W.3), Manager of Budhana Hotel and Uma Shanker Gangulay resident of Nati Imli, Varanasi. The officers of the raiding party disclosed their identity to these persons. P.W.1, R. K. Singh asked Sri Govind Ram Srivastava, Manager, Buddha Hotel that they have got confirmed information to the effect that the Canadian National who was staying in Room No. 207 in his Hotel was illegally possessing Heroin and that they wanted to take search of the said room. Sri Govind Ram Srivastava, P.W.3 and Uma Shanker Gangulay agreed to witness the said recovery. Sri R. K. Singh, P.W.1 went to Room No. 207 of Buddha Hotel. He knocked the door, which was opened by the accused appellant Lawrence John Dowser. Sri R. K. Singh, P.W.1 gave introduction of the raiding party to the accused appellant and asked him to take search of the room in which the accused appellant was staying. He also offered to the accused appellant that if he so desired, he could take the personal search of Sri R. K. Singh P.W.1 and the other members of the raiding party. He also informed the accused appellant that Sri O.P. Rana, Assistant Director was a Gazetted Officer. It was also offered that the accused could be searched in the presence of the Gazetted officer, or Magistrate, if he so liked, But the accused appellant agreed for search by Sri R.K. Singh, P.W.1 and V. K. Singh, P.W.2 Sri R. K. Singh, P.W.1, first of all took personal search of the accused appellant, but nothing incriminating was recovered from his person. He thereafter searched out the room in the presence of other members of the raiding party and witnesses. He found a bag made in Taiwan. He found four small polythene packets which contained powder which was grey in colour. Sri R. K. Singh, P.W.1, with the help of the test kit, which he was carrying tested the said packets and found that the said packets contained Heroin. He weighed all the four packets and found the total weight of Heroin as 7.700 gms. Sri R. K. Singh, P.W.1 found small balance of A. M. Master and Company, Bombay. He also found weights of 20 gms, 10 gms. 5 gms, 2 gms and 1 gm. He also found three weights of 500 mgs. two weights of 200 mgs two weights of 100 mgs. and three rolled packets of polythene, one spoon, one Churi, six used Hypodermic needles and one unused Hypodermic needle. He also found a paper containing addressess, passport bearing No. MB-339068 and an Air Ticket was also recovered by Sri R. K. Singh, P.W.1 from the said bag. On enquiry the accused appellant informed him that the Heroin which was found in his bag was purchased by him from Colaba, Bombay. He did not disclose the name of that man. He further informed that w.e.f. January 93, till date of raid, he had twice sent Heroin to his friend in Canada. The accused appellant further informed that he has been using the unused Hypodermic needle for his own use. He further informed that as compared to Canada, Heroin was easily and cheaply available in India. Sri. R. K. Singh, P.W.1 prepared two samples of Heroine weighing five gms. and 2.7 gms each. He kept the said Heroin in two separate envelopes and sealed them and got the said sealed packets signed by the accused appellant as also his collegues who were the members of the raiding party. The said sealed packets were produced before the Court and were Ex. 2 and 3. The bag was also produced before the Court below and was marked as Exh. 4. The balance and weight were all produced before the Court below, they were marked as Exh. 5 and 6/1 to 6/8. The polythene rolls were also produced and were marked as 7/1 to 7/3. The balance was marked as Exh. 8, the used Hypodermic needles were marked as Exh. 9/1 to 9/6 and unused needle was marked as Exh. 10. The Test memo was marked as Exh. 11. Sri R. K. Singh, P.W.1 prepared recovery memo on spot which contained the signatures of the accused appellant and other witnesses which was marked as Exh. Ka3 and Ka 4. He obtained written statement of Sri Govind Ram Srivastava, P.W.3, Sri H. C. Yadav and V. K. Singh. He arrested the accused appellant at about 10.00 p.m. in the night and prepared the arrest memo Exh. Ka. 5. The accused appellant was, thereafter, taken to the office of Narcotics Bureau. On 15-5-93, Sri R. K. Singh, P.W.1 submitted to detailed report to his Deputy Director which was Exh. Ka. 6. The samples taken were despatched by registered parcel to General Manager, Government Opium and Alkaloid Works, Ghazipur for examination and report. The Chemical Examiner on examination of the sample found that the sample contained Heroin. Sri R. K. Singh, P.W.1, asked the accused appellant to give his statement in writing, but he refused to do so. The recovered articles were produced before the Magistrate concerned at the time of seeking remand. Sri V. K. Singh, P.W.2 Inspector, Central Excise who was also a member of the raiding party filed complaint, Exh. Ka. 9. The accused appellant pleaded not guilty to the charges framed against him. He pleaded that he was falsely implicated into this case. After needful trial into the matter, the learned trial Judge found the accused appellant guilty under Section 21 of N.D.P.S. Act. He accordingly convicted and sentenced the accused appellant as aforesaid. Hence the appeal.

(3.) I have heard Sri J. S. Sengar and Sri Amar Saran, learned counsel for the accused appellant and Sri V. S. Misra, learned Standing Counsel for Union of India Sri V. B. Singh, A.G.A. for State at considerable length and have perused the records of the case.