SIKINDAR PRASAD YADAV Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal has been preferred by the appellant under Sec. 374(2) of the Code of Criminal Procedure, putting to challenge a judgment of conviction dtd. 18/7/2019 and an order of sentence dtd. 19/7/2019, passed by learned Sessions Judge-cum-Special Judge, East Champaran at Motihari in NDPS Case No. 39 of 2017 arising out of C.No. VIII(10)13/CUS/Seiz/NDPS/RXL/17/88 dtd. 8/4/2017, whereby the appellant has been convicted and sentenced as under: <FRM>JUDGEMENT_44_LAWS(PAT)8_2023_1.html</FRM>

(2.) All the sentences have been ordered to run concurrently.

(3.) An Inspector posted at Land Customs Station, Raxaul, Binod Kumar Das (PW-2) filed a complaint petition in the Court of learned Sessions Judge-cum-Special Judge, NDPS, Motihari on 19/7/2017 (Exhibit-14) giving rise to the concerned NDPS Case No. 39 of 2017. The prosecution's story has been elaborately narrated in the said complaint petition. It is the prosecution's case that an information was received on 7/4/2017, that a person was carrying charas from a place Sirasiya (Nepal), for being handed over to someone at Raxaul Bus Stand, East Champaran Via-Kaurihar Chowk, Raxaul. The apparels which the person would be wearing while carrying the said contraband was also indicated in the secret information. A team was accordingly constituted for intercepting the said person and an intimation was sent in this regard to the Superintendent (Preventive) LCS, Raxaul. The team so constituted rushed towards the indicated place at 3:00 pm, and after waiting for a while, the person was spotted. He was signaled to stop, who was found to be carrying a black air-bag. The said person was asked to open his black air-bag in the presence of two independent witnesses (no independent witness was examined at the trial). Upon opening of the bag, some packets wrapped with brown coloured plastic adhesive tapes were found. On enquiry, the person disclosed his name as Sikandar Prasad Yadav (appellant) and told the custom officials that he was carrying charas which he had received from one Tapelal Sah of Sirasiya (Nepal), to be delivered to a person near the bus stand, to be found in a red shirt. Despite efforts made, the persons to whom the charas was intended to be handed over by the appellant could not be located by the DRI officials. It is further case that the appellant, his bag and both the independent witnesses were brought to LCS, Raxaul for further formalities. After arriving at the office, a personal search of the appellant was conducted in the presence of the Superintendent (Preventive) LCS, Raxaul and the said two independent witnesses, after obtaining the appellant's consent to be searched before a Departmental Gazetted Officer. No incriminating material/document was recovered on personal search of the appellant. The bag was opened in his presence. A total of 17 packets of charas in rectangular shape were recovered from the said bag. The charas was weighed in the presence of the appellant and both the witnesses which was found to be 8.450 kgs (net). A seizure memo was thereafter prepared and the recovered charas, weighing 8.450 kgs, was seized on 7/4/2017 under Sec. 43 of the NDPS Act at 8:00 pm for violation of Sec. 8 of the NDPS Act. A copy of the seizure memo was handed over to this appellant also. Thereafter small quantities of charas from each of all the 17 packets were taken and mixed together and three representative samples (weighing approximately 25 gram each) were drawn from the mixed charas and kept in three separate small transparent plastic pouches. The said pouches were kept in three separate plastic coated envelopes in the presence of the appellant and two independent witnesses, which were sealed for sending them to the Joint Director, Chemical Laboratory, Customs House, Kolkata for chemical examination. The interrogatory statement of the appellant was recorded under Sec. 67 of the NDPS Act, wherein he confessed his culpability by saying that he was carrying 17 packets of charas which he had received from Tapelal Sah of Sirasiya (Nepal) for carrying the same to bus stand, Raxaul to be delivered to a person wearing a red shirt. He confessed that he was doing so under the allurement of payment of a sum of Rs.2,000.00.