ARUN KANUNGO Vs. D. PAKYNTEIN

JUDGEMENT

(1.) SINCE all these appeals filed by four appellants under Section 36B of NDPS Act, 1985 read with Section 374 Clause (2) of Criminal Procedure Code 1973, are directed against the common judgment and order dated 2.6.2006 passed by the learned Court of Special Judge NDPS, Shillong in Criminal (NDPS) Case No. 26/2003 and involve common questions of law and fact they were heard together and are being disposed of by this common judgment.

(2.) THE prosecution case, in brief, is that Shri D. Pakyntein, (PW11) an Inspector in the Office of the Commissioner of Custom NER, Shillong, received an information from Special Operation Team (SOT for short) of Meghalaya Police through Shri N.K. Bhandari, Inspector of Customs (PW4), on 19.8.2003 at about 19.50 hours to the effect that one Shri Yasihey Yobin of Dum Dum, Nogthymmai (accused No. 1), the appellant in Criminal Appeal No. 3(SH) 2006 was keeping some heroin in his residence and if a search is conducted immediately the contraband may be recovered. On receipt of this information, Shri Pakyntein contacted Shri R.M. Chyne, Superintendent (PW 7), Shri B. Kar, Inspector (PW 2) and Shri N. K. Bhandari, Inspector of Customs (PW 4) and they all proceeded towards the residence of the said Yasihey Yobin at Dum Dum Nongthymmai, to conduct a search. On reaching there, they met the members of the SOT of Meghalaya Police along with Shri Yobin. After the particulars of Shri Yobin were ascertained a search warrant (Ext. 20) was obtained and then the search of the residence of Shri Yasihey Yobin was then conducted in presence of two independent witnesses Shri R.V. Dkhar (PW 3) and D. Khyriem (PW 8). In the course of the search Shri Yasihey Yobin himself took out one suitcase in which he said he had kept the packet of heroin. However, on opening the suitcase no packet of heroin was found inside. On interrogation on the spot, Shri Yasihey Yobin came out with/' the plea that the only person who knew about the packet of heroin kept by him inside the suitcase was Shri Lisihey Ngwazah (accused No. 2), his brother -in -law, and he might be the person who removed the packet. Then on the bidding of the Custom officials the said Mr. Yasihey Yobin instructed his wife to contact the said Shri Lisihey Ngwazah, asking him to come back immediately with the goods. On being so contacted, the said Lisihey Ngwazah, turned up after a while with a black bag on his shoulder. On being asked, he opened the bag and took out the contents of the bag which included one suitcase cover of camouflage denim made of synthetic fabric and one green polythene bag. On opening the green polythene bag, one plastic packet containing white powder wrapped with two pieces of English Newspaper was recovered. When a small quantity of the said white powder was tested by the Custom Officials with the help of the field test kit in presence of all the persons present there including the two independent witnesses, the said powder tested positive for heroin. The white powder in the plastic packet on being weighed was found to be 380 gms, i.e. commercial quan1ity.

(3.) IN his statement, Shri Yasihey Yobin stated that he had bought the contraband along with his friend Shri Arun Kanungo (accused No. 3) from Gauhati from one Shri A.M. Patrick. After the contraband was brought to Shillong, Shri Arun Kanungo, had contacted one of his friends Shri Raju Premji, accused No. 4, who in turn had contacted one Bhaiji for the purpose of finding customer to buy the product. Shri Ngwazah, accused No. 2, in his statement recorded on the same day stated that on 19.8.2003, when he was sitting in his house in the evening, he came to know that some police personnel and some Custom officials were coming to the house to conduct a search. At that time he recollected that Shri Yasihey Yobin had told him that some precious things had been kept inside the suitcase. Then apprehending that the police personnel and the Custom officials might be coming for conducting a raid for the same precious thing, he immediately opened the suitcase, took out the said packet, put it inside the black colour shoulder bag and left the house to save his brother -in -law Shri Yasihey Yobin.