IBRAHIM ANSARI Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal arises out of the judgment and order of conviction under Ss. 20(b) (II) and 23 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the 'N.D.P.S. Act') passed by Shri Ramesh Kumar Rateyar, Additional Sessions Judge III, Patna vide judgment and order dated 25-5-1999 in Special Case No. 31 of 1997 convicting the appellant and sentencing him to undergo rigorous imprisonment for 14 years and to pay a fine of Rs. 1,50,000.00 on each count and in default of payment of fine further R.I. of three years. The sentences are to run concurrently. The prosecution case in brief is that the complainant D. K. Verma (P.W. 1), Superintendent, Narcotic Control Bureau, Varanasi, filed a complaint on the basis of which the case was registered. It is alleged that be received a secret information that a person is coming from Nepal via, Padroma with Charas and on 12-9-1997 he will deliver the said Charas to a customer at Gandhi Maidan at Patna. He reduced the said information into writing and the same was submitted to the Deputy Commissioner, Preventive and Vigilance, Central Excise, Patna. Accordingly a raiding party consisting of Central Excise Officers, namely, Lokesh Sharma (P.W. 2), Rajiv Kapoor (P.W. 3), Jaideep Kumar (P.W. 4) and M.Q. Hayat was organised. The said party along with Sepoy and Driver reached at Gandhi Maidan, Patna on 12-9-1999 at about 19 hours and collected two independent witnesses, namely, Dharmendra Kumar (P.W. 6) and Shailendra Kumar (P.W. 5). The raiding party noticed that a person carrying a polythene bag was coming towards Gandhi Maidan near Gandhi Murti, who was identified by the informant. He was intercepted by the raiding party and the party disclosed their identity. The said person disclosed his name as Ibrahim Ansari (accused-appellant). The raiding party headed by the abovenamed officers gave their introduction to the suspect and disclosed that they had intention to search the bag possessed by him in order to verify their information. The search was conducted by the officers of the raiding party in presence of above named two independent witnesses (P.Ws. 5 ansd 6) and contraband goods suspected to be charas was recovered from his possession. The Custom officials brought the accused-appellant to Central Revenue Building, Central Excise, Patna for completing the seizure and other legal formalities as there was insufficient light in Ganfhi Maidan. The seizure memo was prepared in the office after weightment of the seized articles (Ext. 7). It is alleged that two samples weighing 25 grams each were drawn from the seized charas and the remaining Charas were wrapped with white clothes and were sealed after observing necessary formalities in presence of the witnesses. The total quantity of the seized Charas was 4 kg. and 150 grams net. It is alleged that a Panchanama (Ext. 8) was prepared and on being reasonably satisfied that a prima facie case of illicit traffic against the accused is made out, he was arrested by giving him grounds of arrest. He was produced before the Court on 13-9-1997 and detailed report regarding search and seizure and arrest was submitted to the Zonal Director, N.C.B., Varanasi on 15-9-1997. The sample drawn from the seized articles were sent to General Manager, Government O.P.M. Alkaloide Works, Gazipur along with test memo affixing specimen of the seal for analysis and report. The Chemical Examiner sent his report dated 20-9-1997 and confirmed the seized substance as Charas . It is also alleged that accused in his statement before the Custom Officers admitted his guilt. On the basis of the above materials on record cognizance of the case was taken by the Special Judge on 11-12-1997 and the trial proceeded. The accused pleaded not guilty and claimed to be tried.

(2.) On behalf of the prosecution P.W. 1 (D. K. Verma) who is the complainant, has deposed to the effect that the confidential information received by him was sent to the Deputy Commissioner, Preventive and Vigilance under his signature. Thereafter, the raiding party was constituted consisting of P.Ws. 2, 3, 4 and 7. One of the member of the party M.Q. Hayat has not been examined. The raiding party along with Sepoy and Driver reached at the Gandhi Maidan and on the identification of the informer he along with the raiding party intercepted the accused-appellant in Gandhi Maidan with a polythene bag. He disclosed his identity and of the raiding party to the accused. Two independent witnesses (P.Ws. 5 and 6) were called upon. The accused was told that he is a Gazetted Officer of the department and he intend to search him on the basis of his information which, the accused volunteered to be searched. Accordingly the search was conducted in presence of the independent witnesses and alleged charas were found in the said bag. The accused confessed that he was carrying charas brought from Nepal to be handed over to some person at Gandhi Maidan. It became dark, hence the custom officials along with two independent witnesses brought the accused to the Central Excise Office where other formalities were completed. On weightment 4 K. G. and 150 grams net Charas were found in possession of the accused. Two samples of 25 grams each out of the recovered Charas were taken out and sealed in the envelop over which the officers of the department, the independent witnesses and the accused put their signatures. The envelop is marked Ext. 2. By test memo (Ext. 3) he sent the samples to Chemical Examiner along with the forwarding letter (Ext. 4). The report of the Chemical Examiner was subsequently received (Ext. 5/1) and the said report was sent to the Government O.P.M. Alkolied Works, Gazipur vide Ext. 6. He has also proved the seizure memo (Ext. 7) and the Panchnama (Ext. 8). The confessional statement of the accused is Ext. 9. The accused has put his signature on the arrest memo (marked Ext. 11 and 11/1) and thereafter, he filed the complaint, which is marked Ext. 12. In the Court P.W. 1 had identified the accused-appellant in the dock and stated that from his possession the said Charas was recovered on 12-9-1997. He further stated that the seized article was kept in Malkhana after the entry being made in the register.

(3.) The evidence of P.W. 1 is corroborated by P.W. 2 (Lokesh Sharma) who assisted P.W. 1 in the alleged recovery of Charas from the possession of the accused. He is an Inspector of Central Excise. He stated that P.W. 1 disclosed his identity to the accused that he was a Gazetted Officer of Custom Department and thereafter, the accused consented to be searched by him. He has put his signature on Ext. 1 which is the envelop containing sample of the seized charas. He further stated that accused made his confession in presence of P.W. 1 and other officials, which was put in writing (Ext. 9) over which he also signed (Ext. 13/8). P.W. 3 (Rajeev Kapoor) is also Officer in the Custom Department who has corroborated, the evidence of P.Ws. 1 and 2. He stated that in his presence the Charas was recovered from the possession of the accused-appellant. He also put his signature on Ext. 9 which is the statement of the accused, marked Ext. 14. This witness could not identify the accused in the dock on the date of examination in the Court. P.W. 4 (Jaideep Kumar), an Inspector of the department, has corroborated the evidence of abovementioned P.Ws. on all material points but he admitted that at the time of seizure he was standing near the jeep and after the seizure and arrest, the accused was brought near the jeep. In his presence the accused made confessional statement and he has put his signature on Ext. 9 (marked Ext. 15). He claimed to identify the accused but on the date of his examination the accused represented through lawyer.