KUSUM DEVI Vs. STATE OF U P

JUDGEMENT

(1.) This criminal appeal has been preferred by the appellant Smt. Kusum Devi against the judgement and order dated 8.6.2017 passed by Additional Session Judge/ Fast Track Court No.2, District Siddharth Nagar in Special S.T. No.24 of 2011, State Vs. Smt. Kusum Devi, under section 8/20 N.D.P.S Act, Police Station Dumariyaganj, District Siddharth Nagar, whereby the accused/ appellant has been convicted and sentenced for the offence under section 20 (b)(II) (c) of NDPS Act for 10 years rigorous imprisonment and fine of Rs.1,00,000/-. In default of payment of fine she has been further directed to undergo six months additional simple imprisonment.

(2.) Briefly stated, the prosecution case is that on 7.6.2011 at 19.50 p.m. PW-1, S.I. Pankaj Kumar Gupta (S.O Dumariyaganj, District Siddharth Nagar,) was on patrolling duty in Kasba Domariyaganj with const. Ramji Yadav, const. Bansbahadur Sharma and const. driver Markandey Chandra. Meanwhile they received a secret information that a racket of drugs smuggler including some ladies are coming from Nepal via Krishnanagar Badhani border carrying with heavy amount of charas. Relying on that information, PW-1 S.I Pankaj Kumar Gupta informed the Circle Officer, Dumariyaganj (C.O) Sri Virendra Kr. Yadav and Sub- Divisional Magistrate (S.D.M). Dumariyaganj Sri Jalrajan Chaudhari and asked to incharge Mahila Thana, District Siddharth Nagar to provide lady constable. The said information was also entered in G.D report at 21-20 p.m. Thereafter they rushed to Bewa T crossing with P.W-4 S.I Brijesh Kumar Singh, const. Asthabhuja Tiwari, const. Tribeni Yadav and lady const. Vidya Singh. After some time const. Amar Nath and const. Satyanarayan Yadav also reached there. They waited the appellant. At 22-30 p.m, one UPSRTC bus came from the side of Dumariyaganj and one male person with three ladies got down from the bus. On the pointing out of informer, the police party intercepted them whereupon they tried to escape but were caught by the police party. On interrogation they disclosed their names and addresses as Kedar Mukhiya son of Ram Bahadur Mukhiya, village Bhawanipur Jitpur,Ward No.3. Police station Semra, District Bada, Nepal, Smt. Kushum Devi (appellant) wife of Baij Nath Sah village Romauli, Police Station Semra, District Bada, Nepal Km. Savita daughter of Ram Bahadur Mokktan village Lele, Police Station Chapagee, District Lalitpur Nepal and Smt. Madhuri Devi wife of Jagat Prasad village Jitpur, Police Station Semra, District Bada, Nepal. They further disclosed that they had 'Charas' in their bag which were carried by them from Nepal. Thereupon they were apprised of their right to be searched before any gazetted officer or Magistrate. They declined to avail their right to be searched out before any magistrate or gazetted officer and said that they were ready to be searched out by the said police personnel. The appellant and other ladies were searched out by PW-6 lady head const. Vidhya Singh whereas other co-accused Kedar Mukhia was searched by other police personal. Upon search sixteen rectangular plates type black colour material were recovered from the possession of appellant Kushum Devi. Similar quantity of same material were recovered from other co-accused. They told that recovered articles were 'charas'. On smelling it also appeared as 'charas'. However, to get exact weight of recovered charas conts. Asthabhuja Tiwari was directed to arrange the electronic weighing machine. After arranging the machine recovered articles were weighted and were found that weight of recovered 'charas' from the possession appellant was 4.050 kgs. Approximate 100gms of 'charas' from each recovered 'charas' were separated and kept separately as a sample in separate boxes and packed and sealed in white colour cloth. Rest recovered article were kept in bag of appellant wherefrom it were recovered and sealed in white colour cloth. Upon personal search some Indian and Nepalese currency note were also recovered from other co-accused but no other material was recovered from personal search of appellant. Recovery memo was prepared and got signed by each member of the police party and copy whereof were given to the appellant including other co-accused. First information report was lodged on the basis of recovered articles and seizure memo.The investigation was handed over to PW-4 Brijesh Kumar Singh and thereafter to PW-3 S.I. Daddan Singh the then Officer in-charge of police station Pathara Bazar.During investigation he inspected the place of occurrence and prepared site plan Ex.ka-5. The sample of recovered articles was sent for chemical examination and was found as 'charas'. Statements of witnesses were recorded and upon conclusion of investigation a charge sheet under section 8/20NDPS Act was filed against the appellant before the competent court.

(3.) Heard Ms Seema Pandey, Amicus Curiae, for the appellant and Sri Sanjay Sharma, learned A.G.A for the State and perused the record.