HAKIM MIAN Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS appeal is against the judgment of conviction and sentence dated 13.02.2006/15.02.2006 of the 4th Addl. Sessions Judge, Muzaffarpur passed in Trial No. 52 of 2005, whereby the appellant has been convicted under Section 20(b)(ii)(C) of the N.D.P.S. Act (hereinafter referred to as the 'Act') and has been sentenced to undergo R.I. for ten years and to pay a fine of one lac and in default of payment of fine to undergo R.I. for two and half years.

(2.) THE prosecution case as stated in the complaint filed by the complainant Ram Kumar Pandey, Inspector, Customs Division, Muzaffarpur is that on 15.06.2003 on receipt of confidential information that a Tractor with Trailor having cavity in the trailor was carrying Ganja from Raxaul side to Hajipur. The preventive team of Officers was formed and the team rushed towards Motipur as the informer was informed that the tractor had crossed Chakiya at about 8.00 a.m. and the team ambushed near Motipur College at NH -28 where at about 10.12 a.m. a similar tractor was seen approaching. The team gave signal to the tractor bearing registration No. BRF -8663 to stop. The tractor and its trailor stopped. It appeared that there was a cavity in the trailer. In the meantime, one motorcycle having two riders arrived there. The motorcycle was stopped. The riders were requested to be Punch in the search of the tractor and trailer. They agree to be punches. The team was deliberating to commence the search and they were searching tool for opening the cavity. At that time the driver of the tractor stated that if the search operation was carried on at that place there was a risk of his life as well as goods inside the cavity. Realizing the gravity of the situation and also finding that they had no tool to open the cavity the tractor and trailer was brought to the Customs Office, Muzaffarpur. The two punches were requested and they also agreed and came to the office with the tractor and trailor. At the office it was found that the cavity was closed, therefore, the cavity in the trailor was opened by cutting the sheet with a chisel. On opening the cavity of the trailor 16 packets were found. On opening of the packets it was found that each of the packets contained 6 Kgs. of Ganja and thus total quantity of 96 Kgs of Ganja was recovered from the cavity in presence of the Punches and a seizure memo (Ext -1) was prepared which was also witnessed by the Punches. The two punches Lavkesh Kumar and Rakesh Kumar (P.W.10) respectively put their L.T.I. and signature on the seizure list. A punchnama (Ext -1/1) was also prepared under the signature of the complainant. The Punchnama contained the statement of the punches regarding the recovery of the Ganja under their L.T.I. and signatures. It also contains the L.T.I. of the appellant, who was apprehended as driver of the tractor. Thereafter, statement of the appellant was also recorded by the complainant. The appellant admitted in his statement that he was carrying the Ganja from Raxaul to Hazipur and he also stated that he was carrying Ganja to Hajipur on being asked by Sri Jitan and Sri Nandan of Raxaul. He also stated that Sri Jitan was the owner of the Ganja and that he was carrying the Ganja on payment of money. Besides this the interrogatory statement under Section 67 of the Act (Ext -1/iii) was also recorded, wherein the appellant disclosed several circumstances regarding the carrying of the Ganja.

(3.) AS many as ten witnesses were examined by the prosecution. P.W.1 R.K. Pandey, Customs Inspector is the complainant who, along with the team had intercepted the tractor and trailor and had made the recovery and seizure and recorded the statement of the appellant and after investigating the case and after receipt of the chemical examination report (Ext -2) filed the complaint. P.W.2 Amar singh was a Hawaldar and P.W.3 Randhir Kumar, P.W.4 Ram Badan Ray, P.W.5 Suresh Prasad Sah, P.W.6 Kanhaiya Singh, P.W.7 Rakesh Kumar Singh, P.W.8 Madhesh Kumar, P.W.9 Syed Bunyad Hussain are the Sepoys of the Customs Department, who comprised the preventive team which had intercepted the tractor and trailor and had made the recovery. P.W.10 Rakesh Kumar is the eyewitness in whose presence the recovery of Ganja was made.