GOPAL SHARMA Vs. CENTRAL BUREAU OF NARCOTICS INDORE

JUDGEMENT

(1.) BY this appeal, the appellants named above have challenged their conviction under Section 8/21 of the Narcotic Drugs and Psychotropic substances Act, 1985 (hereinafter referred to as 'the NDPS Act'), and sentence of RI for ten years with fine of Rs. 1,00,000/- each and in default of payment of fine to suffer additional SI for six months passed in Special Case No. 4/2001 passed by the learned Special Judge, West Nimar, Mandleshwar, on 13-11-2002.

(2.) BRIEFLY stated, the prosecution case as unfolded before the Trial court is that on 27-9-2001 in the evening at 4. 00 P. M. J. C. Shrivastava (P. W. 6), superintendent, Central Narcotics Bureau (for short, hereinafter referred to 'bureau'), Inspector R. K. Rajak (P. W. 7) and Sub-Inspector Girvarpuri (P. W. 5) jointly received a secret information from informant that the appellants named Gopal Sharma and Smt. Shyamubai wife of Karansingh were taking two kilograms of heroin illegally to Pune in a bus and they could be apprehended by checking the buses near Khaltaka. The information was recorded vide Exh. P-13, Superintendent Shri Shrivastava issued direction to Inspector Kumari swati Tamrakar (P. W. 4) and also constituted a trapping party consisting of himself, Inspector Ku. Swati Tamrakar (P. W. 4), Sub Inspector Girvarpuri (P. W. 5), Inspector R. K. Rajak (P. W. 7), Constable Suresh (not examined) and constable Yeshwantsingh (P. W. 3 ). They proceeded from Indore at 4. 30 PM and reached at Khaltaka Police Out Post in District Khargone West Nimar and started checking the bus going from Indore to Pune. In the night at 10. 30 PM 'pushpak' bus bearing registration No. MP-07-F-2844 of M. P. State Road transport Corporation was stopped. The said bus was being driven by driver ambalal (P. W. 1) and Abdul Rashid (P. W. 2) was its conductor. The driver was apprised of the secret information and also was told about search of the bus. Upon search, they had suspicion on the passengers sitting on seat Nos. 27 and 28 (the appellants ). Inspector Ku. Smita Tamrakar (P. W. 4) obtained the consent from appellants while apprising them to be searched before the Magistrate by the Raiding Party in which Gazetted Officer J. C. Shrivastava (P. W. 6) was also present. The appellants gave consent to be searched in presence of the Raiding party. The proceeding of search and seizure was performed in presence of driver Ambalal (P. W. 1) and Conductor Abdul Rashid (P. W. 2 ). In a black bag of appellant Gopal, in its bottom, there was a hollow or cavity wherein two polythene packets were found. In those packets, gray colour powder was available. Weight of the said powder in one packet was one kilogram and that of another packet was 1. 200 kilograms. The appellants disclosed that the polythene bags were containing heroin. The Raiding Party tested the same by their testing kit and found it to be heroin, a product of opium.

(3.) KU. Smita Tamrakar (P. W. 4), the Investigating Officer took out 5 grams heroin from each bag for chemical examination. She seized and sealed the same. Remaining heroin contained in the bag of the appellants was also seized and sealed. In the search of the bag of appellant Shyamubai no contraband article was seized. She was having two travelling ticket of seat Nos. 27 and 28. The consent letter Exh. P-l was prepared regarding search and seizure and exhs. P-2 and P-3 were prepared with regard to the consent of the appellants. Through seizure memo, Exh. P-9, two tickets Exhs. P-6 and P-7 from appellant no. 2 Shyamubai were seized. The appellants were arrested and their respective memos were Exhs. P-8 and P-9. Spot map Exh. P-5 and facsimile of seal Exh. P-4 were prepared and after returning to Indore Office, the appellants were put in lock-up. A detailed memorandum Exh. P-14 (FIR) was handed over to the superintendent. The seized articles were deposited in the MALKHANA and thereafter sent the sample to the Laboratory for examination Superintendent shrivastava registered case No. 5/01 and appointed Inspector Shri R. K. Rajak (P. W. 7) as Investigating Officer for further action. The seized samples were sent to the Laboratory for examination and after examination report Exh. P-16 whereof was given by Vimal Mohan Goyal (P. W. 8), Assistant Chemical examiner. After completion of investigation, Shri Rajak filed the complaint against the appellants for commission of offence punishable under Section 8/21 of the NDPS Act.