KEPHA MOGIRE Vs. N C B

JUDGEMENT

(1.) By this common judgment I intend to dispose of Criminal Appeal No.S. 330 SB of 2008 titled as Kepha Mogire versus The N.C.B. and Criminal Appeal No. S. 382 SB of 2008 titled as Manga versus The N.C.B., as both these appeals have arisen out of the same incident, judgment and order. For convenience facts are being taken from Criminal Appeal No.S. 330 SB of 2008 titled as Kepha Mogire versus The N.C.B.

(2.) Appellants have directed the present appeals against the judgment and order dated 21.12.2007 passed by Shri Gobinder Singh, learned Special Judge, Rupnagar vide which accused/appellants have been convicted under Sections 21 and 29 of the Narcotics Drugs and Psychotropic Substances Act, (in short the Act) and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- each and in default of payment of fine to further undergo rigorous imprisonment for a period of one year each under Section 21 of the Act and to further undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- each and in default of payment of fine to further undergo rigorous imprisonment for one year each under Section 29 of the Act whereas acquitted them under Sections 27-A and 30 of the Act by giving them benefit of doubt from the charges levelled against them.

(3.) The brief facts of the present case are that on 7.12.2005 Balwinder Kumar, Intelligence Officer, NCB, Chandigarh received a secret information that three persons including a Kenyan National were in the process of making a Heroin deal near the Scooter Market, Phase VIII Mohali by using Toyota Qualis bearing registration No. PB-11-X-0038. Balwinder Kumar (PW-2) reduced the said information into writing and forwarded the same to Shri Om Parkash Sharma (PW-4) who authorized Balwinder Kumar (PW-2) to search the alleged three persons. Shri Om Parkash Sharma (PW-4) further authorized and directed Balwinder Kumar (PW-2) to constitute the surveillance team, which consisted of Balwinder Kumar (PW-2), OTC Ravinder Kumar, Constable Rajesh Kumar and PW-1. Shri Om Parkash Sharma (PW-4) accompanied the said team as a Supervising Officer. Inspector Jagdish Singh and SI Anil Kumar were requested to remain available. The team accompanied by said two police officials/independent witnesses reached the Scooter Market Phase VII, Mohali. The team reached there at about 10.00a.m. and at about 10.30a.m., the vehicle Toyota Qualis bearing registration No. PB-11-X-0038 being driven by accused Manga was noticed. After sometime, one Fiat Palio car bearing registration No. PB-11-X-5556 occupied by one person known as Muna was also noticed. Subsequently, it was discovered that the number was fake, as the same had been allotted to a scooter. Accused Manga, Muna and Kepha Mogire were noticed indulging in suspicious activities and it was also noticed that all of them accused are talking to each other. At about 11.30a.m, accused Manga was found sitting on the driving seat of Qualis whereas accused Kepha Mogrie and the said other third person Muna went near accused Manga. The NCB team, in the presence of the said police officials/independent witnesses, immediately rushed to the said Toyota Qualis to round up all the three accused. Accused Muna fled away from the scene by using the Palio Car. Accused Kepha also escaped from the spot leaving behind his motor cycle bearing temporary registration No. HR-61-T-9943. The said team was however, able to nab accused Manga from the spot. On enquiry he disclosed his name and address. Balwinder Kumar (PW-2) then disclosed his identity of the NCB Team in the presence of the police officials/independent witnesses. Balwinder Kumar (PW-2) informed accused Manga that he had information that there was Heroin in his vehicle. He showed the authority letter to accused Manga and claimed that he was authorized to search his vehicle. The police official independent witnesses and accused Manga signed the authority letter. Balwinder Kumar (PW-2) also disclosed to the accused Manga that Shri Om Parkash Sharma (PW-4) was a Gazetted Officer and that the vehicle was to be searched in his presence. Shri Om Parkash Sharma (PW-4) himself also disclosed his identity to accused Manga. Before initiating search, Balwinder Kumar (PW-2) offered himself for his personal search to accused Manga but he declined the same. Balwinder Kumar (PW-2) then searched the offending vehicle. On search of the dash board, one packet covered with a brown coloured adhesive was recovered. On searching the vehicle further, a dark blue coloured polythene packet bearing impression Jagdambey Handloom Amritsar was also recovered from beneath the driver's seat of Manga's vehicle. The said packet contained two small packets covered with brownish colour adhesive tape. Balwinder Kumar (PW-2) then asked accused Manga about the contents of the said packets. Accused Manga informed that these packets contained Heroine. He further disclosed that he and Muna i.e., the person who had fled away from the spot in his car had purchased the said 3kgs heroin and that they were to sell the same to a Negro. He also disclosed that the Toyota Qualis was registered in the name of Kiran Devi wife of Kailash Prashad Gupta resident of 17, Century Enclave, Phase III, Nabha Road, Patiala. Balwinder Kumar (PW- 2) then weighed these three packets independently and found that each packet weighed 1kg. Balwinder Kumar (PW-2) then took small quantities of the suspected substances from each of the packets and tested them with the help of Drug-field detection kit. It showed that all the packets contained Heroin. A large crowd gathered at the spot. Shri Om Parkash Sharma (PW- 4) suspected that peace might be broken, therefore, he directed Balwinder Kumar (PW-2) to take accused Manga to the Police Station Phase VIII, Mohali for further proceedings. Balwinder Kumar (PW-2) complied with the same and took accused Manga and the case property, Manga's vehicle to the said Police Station. Shri Om Parkash Sharma (PW-4) and another official of the NCB remained at the spot and kept a vigil on the Hero Honda motor cycle belonging to Kepha. After about 45 minutes, when the crowd had dispersed from the spot, accused Kepha came to the spot and went to his motor cycle. While he was trying to pick up the said motor cycle, Shri Om Parkash Sharma (PW-4) and his companions nabbed him at the spot. On enquiry he disclosed his name and address. When asked why he earlier fled away from the scene, he disclosed that he had come to collect three packets of heroin from the accused and also disclosed that the said three packets of heroin were lying in the Toyota Qualis occupied by accused Manga. He further disclosed that he had to further deliver the same to one Izhar. Om Parkash Sharma (PW-4) then detained accused Kepha and took him to Police Station Phase VIII Mohali and handed him over to Balwinder Kumar (PW-2). Two samples of 5grams each from the packets were taken. Balwinder Kumar (PW-2) mixed up the contents of the remaining two packets recovered from beneath the driver's seat of accused. The accused were arrested. Statements of the prosecution witnesses were recovered. After completion of necessary investigation, complaint against the accused was presented for trial of the accused.