DHARM RAJ PANDEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal is directed against the order of conviction and sentence passed by the learned Sessions Judge -cum -Special Judge, Buxar in N.D.P.S. Act Case No. 16 of 2000. The learned trial Judge found the appellant guilty under Section 20(b)(i)(old); new Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as 'the Act') and sentenced him to undergo rigorous imprisonment for a period of 12 years with fine of Rs. One lac. In default of payment of fine he was further ordered to undergo R.I. for two years.

(2.) ON 29 -11 -2000 P.W.8, Sri Anwar Hussain, S.D.P.O. at Dumraon received secret information that huge quantity of ganja had been kept concealed in the under - ground room of the Katara of the appellant, Dharamraj Pandey in village Chootaki Dhakaich on Arrah -Buxar main road, P.S. Krishna Brahm, District Buxar. On receipt of this information he sent authorisation letter Bearing No. 1653 dated 29 -11 -2000 (Ext. 9), to the informant, P.W.1 Yogendra Paswan, Circle Inspector of Brahmpur Anchal for conducting raid at the said Katara of the appellant. On receipt of the authorisation letter the informant, Yogendra Paswan (PW1) went to Krishna Brahm Police Station, made sanaha and constituted raiding party consisting of himself, Ram Prabodh Yadav, Officer -in -Charge, Dumraon P.S., Awadhesh Kumar, Officer -in -Charge, Krishna Brahm Police Station, A.S.I. N.N. Singh, A.S.I. Rabindra Singh of Krishna Brahm Police Station besides armed party. Thereafter the police team proceeded to the village Chhotaki Dhakaich and at about 9 p.m. they reached the Katara of the appellant, Dharamraj Pandey and found him present there. Sri Anwar Hussain S.D.P.O., Dumraon P.S. seems to have reached the Katara separately and shortly after the raiding party had reached there. The informant showed the authorisation letter of S.D.P.O. Dumraon (Ext. 9) to the appellant for searching his house. The appellant did not object and gave his written -consent (Ext.1) for searching his house Katara by the police team. The informant, the police party and the witnesses gave their own search to Dharmraj Pandey and then they entered into his Katara along with the witnesses, Sanjeet Pradhan and Dhanraj Singh Kushwaha. They went inside a room in the east side located in the south -west corner and found a wooden box kept in the corner of the room. The wooden box was removed and they found the stairs going down into the underground room. The informant Yogendra Paswan entered in the underground room and found 23 packets of ganja kept in red colored polythene in the room. The ganja was weighed and was found three quintals 39 Kgs. and 500 gms for keeping which the appellant failed to produce any licence. The ganja was seized, the seizure list was prepared and was signed by the witnesses as well as by the appellant. Small quantity of seized ganja was taken out from each packets and two samples were prepared (Ext. S/1 and S/2) and thereafter all the packet were separately seated. The seizure list was marked as Ext.2 and sample signature with white covering, clothes was marked as Ext.5. The appellant was arrested and the informant, Yogendra Paswan, Police Inspector Brahmpur Anchal, camp at Chootaki, Dhakaich recorded his own fardbeyan (Ext.4). He handed over the accused -appellant with seized ganja and samples and his self drawn statement to the Officer -in -Charge, Krishna Brahm Police Station. There after the Officer -in -Charge of Krishna Brahm Police Station forwarded the statement of the informant to the Officer -in -Charge, Brahmapur Police Station for institution of a case on the basis of which Brahmpur PS Case No. 232/2000 dated 30 -11 -2000 under Section 47(A) of the Excise Act and Section 20(b)(i)/27/29 of the Act was instituted against the appellant, Dharm Raj Pandey, the accused Suresh Tiwari Uma Shankar Tiwari besides the driver and khalasi of Tata 409 and unknown persons. The investigation of the case was entrusted to the Officer -in -Charge of Krishna Brahm P.S. A.K. Prasad, P.W.5, a member of the raiding party. After usual investigation charge -sheet was submitted against the appellant, showing other accused absconder under aforesaid Sections. Accordingly, cognizance of the offence was taken and the case of the absconding accuse was separated vide order dated 7th February, 2001 and the appellant was put on trial.

(3.) THE prosecution examined altogether 10 witnesses to substantiate charge against the accused -appellant. Out of them P.W.1, Yogendra Paswan, Inspector, Brahmpur Anchal, P.W.2, Rabindra Nath Singh, A.S.I., of Police, P.W.6, Nag Narain Singh, A.S.I. P.W.5, Awadhesh Kumar Prasad, Officer -In -charge, Krishna Brahm Police Station, were the members of the raiding party. At the same time P.W.5, Awadhesh Kumar Prasad, is also the Investigating Officer of this case. P.W.8, Sri Anwar Hussain, S.D.P.O., Dumraon was present at the time of search of the Katara of the appellant. P.W.3, Sanjeet Pradhan and P.W.4, Dhanraj Singh Kushwaha, are the seizure list witnesses and they have proved their signatures, 8/2 and 8/3. On denial of seizure in their presence both the witnesses were declared hostile by the prosecution and were put to cross - examination but nothing material surfaced in their cross -examination. P.W.9, Ballam Singh, the then A.S.I., of Krishna Brahm P.S. is a formal witness. He proved all the six gunny bags of ganja seized in connection with Krishna Brahmpur P.S. Case No. 232/2000 bearing S.D. Entry No. 512 showing recovery from the house of the appellant, Dharm Raj Pandey, (Material Ext. I to I/5). In cross -examination he has stated that by mistake, on four gunny bags Krishna Brahm P.S. Case No. 223/2000 in place of P.S. Case No. 232/2000 was written. In fact all the six gunny bags were connected with Krishna Brahm P.S. Case Number 232/2000. The numbers on all the gunny bags were written and signed by Awadhesh Kumar Prasad, P.W.5 (Ext. A to A/5). P.W.10, Md. Yunus Khan is O.C. of Brahmpur Police Station and has proved photo copy of Brahmpur P.S. Case No. 232/2000 which was instituted under Section 307 besides various other Sections of the Indian Penal Code.