RAMPHAL BAIRAGI Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 31.3.2001 and order dated 9.4.2001 passed by Special Judge, Gopalganj in trial No. 6. of 2000/5 of 2001 convicting and sentencing the appellants to undergo rigorous imprisonment for twelve years and to pay a fine of Rs. 1,20,000/ - each and in default to pay fine to further undergo rigorous imprisonment for a term of 1 -1/2 years under Section 22 of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the Act) and to undergo rigorous imprisonment for a period of twelve years and to pay fine of Rs. 1,20,000/ - each and in default to pay fine to further undergo rigorous imprisonment for a term of one and half years under Section 23 of the Act. Both the sentences, however, have been ordered to run concurrently.

(2.) THE case of prosecution, as disclosed in the official complaint of complainant Ashish Kumar (P.W. 1), in short, is that the complainant, the then Inspector of Customs (Preventive) Circle, Gopalganj, in course of routine preventive check at Koini under Gopalganj district, received a casual information that Charas may pass through National Highway 28 between 8.30 hours to 12 hours on 10.4.1997 in a car. The complainant passed this information on telephone to Assistant Commissioner, Customs (Preventive) Division, Motihari for deputing any Superintendent of Customs at Gopalganj because the Superintendent, Customs (Preventive) Circle, Gopalganj, who was posted then, was on leave and he alongwith his party rushed to village -Devapur on National Highway 28 and started keeping vigilance on all types of light vehicles. A Fiat car was found coming from Mohammadpur at about 9.30 hours and its movement was suspicious and it did not bear any registration number at the front. The party of complainant gave signal to stop the car and the car stopped after speeding to some distance. When the party of complainant reached near the car, it was found that appellants Radhe Shyam Sharma and Ramchandra were sitting on the back seat of the car and appellant Ramphal Bairagi was sitting on the driving seat. On being asked by the party, the appellants opened the door of the car which appeared very heavy in movements and on closer look, it was found that panels of all doors were fitted with new screws whereas the car was old one and on enquiry, the appellants said that they were coming from Raxaul and they disclosed their names. The appellants seemed perplexed. The party of complainant told the appellants that it was suspecting them for carrying illegal psychotropic/contraband items in their car and they wanted to search the car and enquired from appellant Ramphal Bairagi who was driving the car whether he wanted his car to be searched before a Gazetted Officer or a Magistrate or before two independent witnesses on which he replied that the car may be searched before two independent witnesses and remaining two appellants showed their willingness by nodding their heads. The complainant called two independent witnesses from the crowd which had gathered at the spot in curiosity and the party of complainant started searching the car and when panels of doors of the car were unscrewed, something in small rod form, burnt brown in colour and wrapped in plastic tapes was located which was taken out and the appellants were enquired about that but they did not say anything. As the thorough search of car, weighment of suspecting thing recovered and another seizure formalities would not have been completed at the spot and considering the sensitivity of the item recovered, the car alongwith appellants and two witnesses was brought to customs (Preventive) Circle Office, Gopalganj and in the meantime, Superintendent, Customs (Preventive) Circle, Bettiah also reached there. On thorough search of car, in presence of appellants, two independent witnesses and Superintendent, Customs Preventive Circle, Bettiah, cavities were recovered at the bottom of car and in the petrol tank which was cut apart with the help of chisels and hammers and cavities were fitted with same type of things which was recovered from the panels of doors of car appearing to be Charas and some more Charas was also recovered from the door frames; two pieces of Nivea cream of German make were also recovered. On further enquiry, the appellants accepted that the burnt brown rod shaped things wrapped in plastic tape recovered from the car was pure Charas. one of the wraooings was torn open in the presence of Superintendent, Customs (Preventive) Circle, Bettiah before the two independent witnesses and appellants and its smell was of Charas. The persons of appellants were also searched. The Charas like substance recovered in packets from car was weighed which came to forty eight kilograms, the price of which, according to rate of international market, was forty eight lacs at that time. From car, driving licence, affidavit papers for buying and selling the car forms for transfer on receipt of motor vehicle No. 1046, insurance paper related to car and driving licence of Shri Nand Kumar etc. were also recovered.

(3.) ON the basis of the official complaint of the complainant, cognizance was taken and after separating the case of co -accused Nand Kumar and Rajendra Singh, the trial proceeded against the appellants.