ANIL Vs. CBI

JUDGEMENT

(1.) In N.D.P.S. Special Case No. 363 of 1998 and N.D.P.S. Special Case No. 279 of 1999 a common judgment was rendered by the learned Special Judge under the N.D.P.S. Act and accused Nos. 2 and 3 came to be acquitted whereas accused No. 1 came to be convicted for the offences punishable under Section 20(b) and 29(i)(1) read with Section 8(c) of the N.D.P.S. Act and he has been sentenced to undergo R.I. for a period of 12 years and also to pay the fine of Rs. 2,00,000/-(Rs. Two lacs). This order of conviction and sentence has been challenged by accused No. 1 in Criminal Appeal No. 162 of 2001 and the order of acquittal passed against accused Nos. 2 and 3 has been challenged by the Union of India in Criminal Appeal No. 352 of 2001. Accused No. 1 is undergoing sentence as aforesaid as he was denied bail in this appeal.

(2.) As per the prosecution case P.W.1 - Pradip Suryawanshi, Inspector from CBI, EOW, Mumbai had received a specific and reliable information on 15.6.1998 that 46 cartons containing Narcotic drugs under the garb of consignment of leather jackets was under transportation from Jaipur (Rajasthan) to Mumbai through M/s. International Cargo Carriers (for short "ICC") and the consignment was sent by All Rajasthan Cottage Industries, Jaipur to M/s. Star Exports, Mumbai. After completing the formalities, the team headed by P.W.1 with two independent witnesses visited the go down of ICC situated at Ambika Terrace, Clive Road, Dana Bender, Mumbai on the same day before 18.00 hours. The said team physically verified 46 cartons lying at the go down of ICC and completed formalities of search, seizure and recovery in presence of the employees of ICC and the Superintendent of CBI Shri H.M. Gupta (P.W.13) and two officers from the Narcotic Control Bureau (NCB). The panchnama at Exhibit-33 was drawn and on verification it was noticed that out of 46 cartons, 34 were found to contain Charas (Hashish) and remaining 12 cartons were found to contain assorted leather jackets and other garments. The substance found in the cartons was specifically tested and confirmed that it was Hashish (Tetra Hydro Cannabin -THC) Narcotic drug and weight of the substance was 845.2 Kgs. Two samples of 50 gm from each carton were drawn and thus 68 samples were packed, stapled and the remaining quantity of NDPS substance was repacked. Office premises of ICC was thoroughly searched and about 28 documents pertaining to 48 cartons were also seized including delivery register, running into 17 pages. The offence vide C.R. No. RC-4/E/98 was registered on 16.6.1998 at about 18.00 hours against M/s. Rajasthan Cottage Industry, jaipur and Proprietor/Partner of M/s. Star Exports, Jodhpur and other unknown persons.

(3.) Simultaneous follow up action was taken at Jaipur by Mr. H.M. Gupta on instructions of the Superintendent from Mumbai and the owner of ICC was interrogated along with one Shantilal Jain (P.W.13). The premises of M/s. All Rajasthan Cottage Industry at Jaipur were also searched. The investigation was thereafter entrusted to Shri Suresh (P.W.35), Inspector, CBI, EOW, on 17.6.1998 and he visited Jaipur on 26.3.1998 and took charge of the day book and other documents in the office premises of ICC. Shri Moolsing Omkar Singh (P.W.17) carried search at the residential and office premises of accused No. 2 as well as at the residence of accused No. 3 on 16.6.1998 and 17.6.1998 (Exhibit-110 and 111). From the premises of accused No. 3, Rs. 1,68,950/-was recovered. The premises of accused No. 1 were also searched on 7.8.1998 by P.W.35 -Shri Suresh (Exhibit-150). Accused No. 2 - Rampratap Singh appeared before the CBI on 17.8.1998 and he was arrested and accused No. 3 came to be arrested on 21.8.1998. A Contest car was seized at Delhi (Exhibit-208). On 28.8.1998 in the search carried out at the residence of the daughter of accused No. 1, a photograph of accused No. 1 was collected under panchnama at Exhibit-189. Accused No. 1 could not be apprehended and, therefore, the charge-sheet was filed against accused Nos. 2 and 3 on 11.11.1998 giving rise to NDPS Special Case No. 363 of 1992. The application for proclamation was moved before the Chief Judicial Magistrate at Jaipur on 22.12.1990 against accused No. 1 for his appearance and consequently, he was apprehended on 2.6.1999. On 26.8.1999 on further investigation supplementary charge-sheet was filed against accused No. 1 which resulted into NDPS Special Case No. 279 of 1999. As both the cases arose from the same incident and in the same C.R., both of them were clubbed together and tried. The charge which was framed against accused Nos. 2 and 3 at Exhibit-17 was reframed at Exhibit-21 against all the accused. The prosecution examined in all 44 witnesses and produced 29 articles. Accused No. 2 examined Ram Prasad Brijlal Vyas, a legal practitioner from Jaipur (Exhibit-296) and through this witness produced a register in respect of the proceedings of the trust of Kalyan Maharaj temple in which accused No. 2 was one of the trustees, so as to show that accused No. 2 was at village Diggy attending religious ceremony during the relevant period. By the detail order passed on an application at Exhibit-281, the defence was allowed to inspect the misdeal property which was lying with the prosecution and by a pushes at Exhibit-286, pursuant to the order dated 7.11.2000, the prosecution produced 11 cartons chosen by the advocate of accused No. 1.