HARDEO SINGH Vs. CENTRAL BUREAU OF NARCOTICS, NEEMUCH

JUDGEMENT

(1.) . Appellants/accused have filed these appeals under section 374, Criminal Procedure Code, against the judgment and order dated 8 -10 -1998, In Special Case No. 64/97, passed by the learned Special Judge NDPS Act Mandsaur, Shri Jagdish Prasad Parashar. Appellant Hardeosingh has filed Appeal No. 1289/98 and appellant Balveersingh has filed appeal No. 1299/98 of their conviction and sentence for the offence punishable under section 8/15 and 8/18 of the Narcotic Drugs and Psychotropic Substances Act (for short 'NDPS Act') for 10 -10 years' R.I. and a fine of Rs. 1 lac each and in default of payment of fine further R.I. for 2 -2 years. Appellant/accused Azam Khan and Abbas Khan have filed appeal No. 1287/98 against their conviction and sentence for the offence punishable under sections 8/29 and 8/18 of the NDPS Act for 10 -10 years' RI and a fine of Rs. 1 lac each and in default of payment of fine further R.I.. for 2 -2 years. Appeal No. 1295/98 is filed by appellant Siso against the order in the impugned judgment of the confiscation of the truck under section 60(3) of the NDPS Act.

(2.) PROSECUTION case is that on 1 -5 -1997 at about 9.45 AM when the officers of the CBN (Prevention of Smuggling in Narcotics Department) were checking the vehicles at Nimbaheda -Jawad Road then signal was given by the Superintendent CBN N.C. Vijay (PW7) to check truck No. DIG -4753, but the said truck took the speed and, thereafter, it was stopped by the officers of the CBN. That accused Hardeosingh and Daljeetsingh came down from the driver seat of the truck and NC Vijay (PW7) told them that they are suspected and he want to take their search. N.C. Vijay (PW7) has apprised accused Hardeo Singh and Daljeet Singh of their right of search by the Gazetted Officer or the Magistrate and both of them have given consent of their search by N.C. Vijay (PW7). The consent memo Ex.P/1 was prepared and the accused have signed the consent memo. That in the search of the cabin on the driver seat behind raisin cartoons one bag containing opium was found and another raxin sack there was poppy straw. That on weighment the opium was 2.100 Kgs and the opium straw was 8.800 Kgs. That the 2 -2 samples of opium and 'DODA' were extracted and the sample packets along with the seized item were sealed. That the 'Panchnama' of the proceedings Ex.P/2 was prepared and the signatures of the witnesses before whom the seizure was done i.e., Bhanwarsingh (PW1) and Satyanarain (PW2) were taken on Ex.P/2. Superintendent N.C. Vijay (PW7) apprised the accused persons about the ground of their arrest and they were arrested, inspector A.K. Tulsidasan took statement (Ex.P/11) under section 67 of the NDPS Act of accused Hardeo Singh. He has also recorded statement (Ex.P/12) of accused Daljeet Singh, wherein both the accused have stated that they have purchased the opium from accused Azam Khan and Abbas Khan from village Hasan Paliya, near Jaora. That after recording the statements of accused Hardeo Singh and Daljeet Singh they were taken to the Office of Central Bureau of Narcotics, Neemuch, where the 'Muddemal' was handed over to the incharge 'Malkhana' Abdul Samad Khan (PW3). Abdul Samad Khan (PW3) has sent one sample packet of each item to the Government Opium Factory, Neemuch through Constable Shobhagmal Rathor.

(3.) THE prosecution case is that Inspector Kishanlal Khagna (PW6) was directed to investigate the case and he went to village Hasan Paliya and gave the notice Ex.P/16 to accused Abbas Khan and notice Ex.P/17 to accused Azam Khan for recording their statements under section 67 of the NDPS Act. That Inspector Kishanlal Khagna (PW6) took statement of accused Abbas Khan (Ex.P/18) and also statement of accused Azam Khan (Ex.P/19), wherein they have stated that the opium was sold by them to accused Hardeo Singh and Daljeet Singh and they have signed the statements Ex.P/18 and Ex.P/19. That Inspector B.K. Gokhle (PW5) recorded the statements of the witnesses during investigation. That the information of the seizure of the truck was sent to the Special Judge. That the investigating Officer received the report Ex.P/23 dated 23 -7 -1997 from the Government Opium Factory, Neemuch. Thereafter, on 28 -7 -1997 the charge sheet was filed by the Investigating Officer B.K. Gokhle (PW5) against the accused Hardeo Singh and Daljeet Singh under sections 8/15 and 8/29 of the NDPS Act and against accused Azam Khan and Abbas Khan under section 8/18 and 8/29 of the NDPS Act in the Court of Special Judge, Mandsaur. Accused persons have abjured the guilt and they have denied all the incriminating circumstances appearing against them in their statements under section 313, Criminal Procedure Code. The defence of accused Hardeo Singh and Daljeet Singh is that they were taking the food in the 'Dhaba' near Neemuch and the officers of the Narcotics Department physically assaulted them and took their signatures on blank papers. The defence of accused Azam Khan and Abbas Khan is that they have not given any statement to the officer of the Narcotics Department and their signatures were obtained on blank papers. Accused persons have not examined any witness in their defence. In order to prove the case against the accused persons the prosecution has examined 'Panch' witnesses Bhanwarsingh (PW1) and Satyanarain (PW2), Superintendent/Deputy Commissioner Narcotics, Abdul Samad Khan (PW3), Inspector CBN, A.K. Tulsidasan (PW4), Inspector CBN, B.K. Gokhle (PW5), Inspector CBN Kishanlal Khagna (PW6) and Superintendent CBN, N.C. Vijay (PW7). The learned trial Court has held that the opium and 'DODA' were recovered from the possession of the accused Hardeo Singh and Daljeet Singh and they were convicted and sentenced as above. The learned trial Court has further held that the offence of illicit possession of opium and selling the opium is established on the basis of the statements under section 67 of the NDPS Act against accused Azam Khan and Abbas Khan and they were convicted and sentenced as above. The learned trial Court has also held that the seized truck No. DIG -4753 was used for carrying the Narcotic drugs and it was ordered to be confiscated under section 60(3) of the NDPS Act. Appellants Hardeo Singh and Daljeet Singh have challenged their conviction on the ground that the learned trial Court has erred in believing the uncorroborated testimony of the official witnesses and that the mandatory provisions of sections 42, 50, 52, 55 and 57 of the NDPS Act were not followed and, as such, the conviction is bad in law.