KUSUMI DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal, under Sections 374(2) and 389 (1) of the Code of Criminal Procedure, 1973 (in short 'the Code'), is directed against the judgment and order dated 18.7.2001 passed by Shri Md. Khurshid Alam, 2nd Additional Sessions Judge, East Champaran, Motihari in Excise Case No. 3/22 of 1999/99 by which the appellants were convicted under Section 23 of the Narcotic Drugs and Psychotropic substances Act, 1985 (in short 'the Act') and sentence to undergo rigorous imprisonment for 10 years each and to pay a fine of Rs. 1,00,000/- each, in default to further undergo rigorous imprisonment for one year each.

(2.) FROM the prosecution case it appears that Shri Prem Chand Singh (P.W. 5) the Inspector of Customs received an information about the commission of the alleged offences. The Assistant Commissioner Customs Shri R.P. Singh (P.W. 6) headed a raiding party and went to Gandhi Smarak Belbanwa, Motihari where the raiding party found two ladies coming on a rickshaw. The raiding party stopped the said rickshaw and after performing all the formalities of search the lady Inspector Customs, Miss. Bina Rani Mukhoapdhyaya (P.W. 7) searched the persons of these two women on which 4 kgs. of Charas each was recovered from them. The recovered articles were seized, a seizure list was prepared in presence of the witnesses and on Laboratory test seized articles were confirmed as Charas. A complaint was filed by P.W. 5 on which cognizance of the offence was taken by the learned Sessions Judge. The appellants were tried by the learned Additional Sessions Judge named above who convicted them in the manner indicated above.

(3.) I will firstly refer to the judgment of the Division Bench passed in the case of Jann Mohmad (supra). In this decision in paragraph 6 a reference has been made to decision of the Hon'ble Supreme Court reported in (1996) 6 S.C.C. 172 on which the reliance was placed by the appellants before the Division Bench. Though a reference to this case has been made in paragraph 8 of the judgment the names of the parties to this reported decision have not been disclosed. The practice invariably is that in judgment of this Court or of Hon'ble Supreme Court while referring to another reported case firstly the names of the parties are disclosed and then the citation of the reported case is given. In the present case it appears that this has not been done. On referring to (1996) 6 S.C.C. 172 in the reports it appears that at page 172 no fresh case has been reported. As a matter of fact that case of Navaneethammal has been reported from page166 of this report which is continued up to page 173. Therefore, obviously, reference of a case reported in (1996) 6 S.C.C. 172 as mentioned in paragraph 8 of this judgment appears to be oversight and cannot be said to be correct. Similarly, in paragraph 9 of this judgment a reference has been made to the case of K.M. Saleem v. State whose citiation has not been given, only (supra) has been mentioned after the name of K.M. Saleem v. State,. No such case has been earlier referred to in this judgment and it is not clear what the learned Judges meant by (supra) after mentioning K.M. Saleem v. State in paragraph 9 of this judgment.