LIOR AVI BEN MOYAL Vs. NARCOTICS CONTROL BUREAU

JUDGEMENT

(1.) LIOR Avi Ben Moyal, an Israeli national, Narinder Gupta, an Indian national and Jiri Andreev, a Czech Republic national, have filed separate criminal appeals i.e. CRA No. D -1051 -DB of 2011, CRA No. D - 1057 -DB of 2011 and CRA No. D -20 -DB of 2012 respectively, challenging the judgment and order dated 29/30.7.2011, passed by Special Judge, Chandigarh, whereby they have been convicted under Section 20(b) (ii)(C) Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'the NDPS Act') and sentenced to undergo rigorous imprisonment for 16 years and fine of Rs. 2,00,000/ - each, in default thereof, to undergo further rigorous imprisonment for one year each. They have also been convicted under Section 29 of the NDPS Act and sentenced to undergo rigorous imprisonment for 16 years and to pay fine of Rs. 2,00,000/ - each, in default thereof, to undergo further rigorous imprisonment for one year each, for allegedly keeping in their conscious possession 154.5 kilograms Charas. Both the sentences have been ordered to run concurrently.

(2.) THE prosecution case is that on 14.1.2005, a secret information was received from NCB Headquarters, New Delhi to NCB, Zonal Unit at Chandigarh. On the basis of said information, a team of NCB carried out intensive surveillance. It came out that Lior Avi Ben Moyal, an Israeli national, Jiri Andreev, a Czech national and Narender Gupta, resident of Kullu (India) have conspired to smuggle out a huge consignment of charas to some foreign destination by concealing it in some furniture. On 9.2.2005, at about 1:00 PM, another secret information was received by Ravi Kant Pawar, Intelligence Officer, NCB, that the above said persons had recently received a huge consignment of charas, which is suspected to be hidden somewhere in Plot No. 653, Industrial Area, Phase -I, Chandigarh, and that all the said persons have been spotted there with their bag and baggage. The immediate search of said premises was considered necessary as there was possibility that accused will remove the contraband from the said plot and escape. Abovesaid secret information was reduced into writing (Ex.PW6/A) by Ravi Kant Pawar and then it was laid before Superintendent of NCB, Chandigarh (Shri O.P. Sharma), who issued search authorisation (Ex.PE) and directed Ravi Kant Pawar, Intelligence Officer to constitute a team to search Plot No. 653, Industrial Area, Phase I, Chandigarh. A team comprising Ravi Kant Pawar, Intelligence Officer, P.K. Sharma and Balwinder Kumar, both Intelligence Officers, Ravinder Singh, OTC, Gurdev Singh, Driver and Rajesh Kumar, Sepoy, was constituted, whereas O.P. Sharma, Superintendent (Gazetted Officer) also accompanied the team as Supervisory Officer. The abovesaid team proceeded to Industrial Plot No. 653 at about 1:30 PM on 9.2.2005 and on reaching there at about 2:00 PM, they detected some persons manufacturing furniture in the booths constructed in front portion of said industrial plot. Investigating Officer Ravi Kant Pawar after giving his introduction to said persons associated two furniture makers, namely, Deepak Chand son of Ram Narayan, resident of village Devaria, District Aazamgarh (UP) and Ram Narayan son of Minnu Ram, resident of village Devaria, District Aazamgarh (UP) as witnesses. They were informed that NCB had information that two foreign nationals and one Indian national are present in the said industrial plot and that they are involved in drug trafficking and for the said purpose, search has to be carried out. Requisite notices under Sections 42 and 43 of the Act (Ex.PW -6/C and Ex.PW -6/D) were served upon witnesses, namely, Deepak Chand and Ram Narayan respectively who gave their respective consents, vide endorsements Ex.PW6/E and Ex.PW6/F to join as witnesses to the said search. In the meantime, Ajit Singh son of Mohinder Singh, owner of said industrial plot,who was incidentally present in his office in the said plot, was also joined in the investigation. He was apprised by the NCB team about the purpose of visit to the said plot and thereafter, he (Ajit Singh) disclosed to the NCB team that he had leased out hall measuring 930 Sq. ft. to Ben Moyal Aharon, a foreign national w.e.f. 1.1.2005 to 31.12.2006 and that his son Lior Avi Ben Moyal is present in the said hall with his foreigner and Indian friends. Notice under Section 42 of the Act (Ex.DA) was served upon said Ajit Singh requiring him to join as a witness for the search. Ajit Singh gave his consent (Ex.PW8/A) to join the said proceedings.

(3.) THEREAFTER , NCB team alongwith abovesaid witnesses searched the abovesaid hall, which was lying divided into two portions. In the front half portion, sofas were kept whereas second half was further divided by plywood partition having separate sliding doors. In the first room, twelve big wooden boxes were found whereas adjoining room was found bolted from inside. On knocking, door was opened wherein three persons were found. Ravi Kant Pawar, Investigating Officer disclosed his identity as well as of his team members to said three persons and also the purpose of their visit. Said persons disclosed their names as Lior Avi Ben Moyal, Jiri Andreev and Narender Gupta. Search authorisation was also produced before said persons and they alongwith witnesses appended their signatures on the said document. Prior to effecting search, Ravi Kant Pawar, Investigating Officer also offered for the search of his person and his team members but the same was declined by the abovesaid persons. It was also informed to the abovesaid persons that O.P. Sharma, Superintendent, NCB accompanying the team is a Gazetted Officer.