MOHAMOUND MEHRI ALLAHYARI Vs. UNION OF INDIA

JUDGEMENT

(1.) Both these appeals can be disposed of by a common judgment since the appellants are challenging the judgment and order passed by the Special Judge in Special Case No. 53 of 2004. The appellant in criminal Appeal No. 662 of 2005 is original accused No. 2 whereas the appellant in Criminal Appeal No. 663 is original accused No. 1.

(2.) The prosecution case, in brief, is as under:-

(3.) On 28th/29th February, 2004, the Officers of Air Intelligence Unit of customs were on duty at Sahar Airport. At that time, they noticed two accused carrying three heavy zipper suitcases and they were moving towards the check-in-counter of the Emirate Airways. Since the Officers found that they were nervous, and their movements were suspicious, they decided to examine their baggage thoroughly and, accordingly, instructed the staff of that Airlines to keep their baggage aside. Thereafter, the Officers intercepted the accused after the accused completed immigration and customs formality and were proceeding for security check before boarding the flight for Dubai. The Officers asked them whether they were carrying any narcotic drugs. The accused replied that they were carrying some ready-made garments and personal effect. The Officers called panchas and explained to them that they wanted to examine the baggage of the accused and requested them to act as panchas. In the presence of panchas, both the Officers gave the accused option of being searched in the presence of the magistrate or a Gazetted Officer. The accused preferred to examine before the gazetted Officer. They identified their two suitcases. After the first suitcase was opened, it was found that it contained 29 packets of Buprenorphine injections, each containing 5 strips of the injection of 10 ampoules each i. e. 1450 ampoules and two boxes containing 8891 ampoules. Thus, the total number of 10341 ampoules of 2 ml. each and containing 0. 3 mg. per ml. of Buprenorphine was found. Two boxes of 50 ampoules each were taken as samples from the said packets. Thereafter, the second black coloured zipper suitcase was opened. It also contained 30 packets of Buprenorphine injections and, in the said bag also there were about 10,329 ampoules of 2 ml. and each containing 3 mg. per ml. of buprenorphine were found. Two packets of 50 ampoules each were taken as samples from the said packets. The other hand bag was found to contain personal effect. The panchanama was accordingly made. All the cartons were sealed. The locks and keys were packed in one envelope and travel documents were put in separate envelope and the envelopes were sealed. The accused were off loaded from the flight. Their statements were recorded. In their statements, they admitted that they had carried the said injections and they had admitted that these injections were arranged by the relative of the accused No. 2 and they were being smuggled out of India for the purpose of selling them for profit in Tehran. The accused stated in their statements that they would have earned 1,000 US Dollars as profit by selling these injections. Both the accused were arrested. Further investigation was made by the Officers and a complaint was filed against the accused. The process was issued against both the accused and, thereafter, the special Judge framed the charge against the accused under section 29 read with section 8 (c) of the NDPS Act. The accused pleaded not guilty to the charge.