RAJENDRA KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) These two appeals are taken up together for disposal as both arise out of the same judgment of conviction and sentence dated 21st January, 1994 passed by Shri S.K. Murari, 6th Additional Judicial Commissioner, Ranchi in R.C. Case No.3 of 1992 (R)/T.R. No. 133 of 1992, convicting the accused-appellants under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as 'the Act') and sentenced to under go rigorous imprisonment for 12 years each and also to pay a fine of Rs. 1,00,000/- (Rupees one lac) each and in default thereon, to under go simple imprisonment for a period of two years each.

(2.) The case of the prosecution in brief is that the Central Bureau of Investigation (for "short 'C.B.I.') on a Decree information to the effect that the accused-appellant Rajendra Kumar was doing illegal business of selling narcotic drugs in his shop No. G/120 and residing in H.E.C. Quarter No. Dt/1415, Dhurwa, with his other associates. A raiding party was formed consisting of Shri N. Jha, Deputy Superintendent of Police (P.W. 5), Shri Sharwan Kumar, Deputy Superintendent of Police (P.W. 6) and other C.B.I. won, Ranchiy at the instance of Superintendent of Police, C.B.I. Ranchi. Two independent witnesses, namely, Ratneshwar Sharma (P.W. 1), Head Security Guard and Shudeo Prasad Harandi (P.W. 4), Security Guard of C.C.L. were produced and were, assaulted with the raiding party. They went to J.P. Market, Dhurwa, On 16.2.1992 at about 11 A.M. As per the plan, P.W. 6 would contact the accused appellant Rajendra Kumar as prospective buyer of Narcotic drugs, namely, Hasin (Charee) (and other members of the party were instructed to be vigilant and keep a constant watch over the movement of P.W. 6. It was further designed that in the event Hasis or other Narcotic drugs could be found in the possession of Rajendra Kumar, then P.W. 6 would were his hands and wipe his head to give signals to the other members of the party. Accordingly, P.W. 6, visited shop No. G/120 of the accused-appellant Rajendra Kumar in J.P. Market at Dhurwa. He posed himself to be the prospective purchaser of some general articles and in the midst of conversation, he could be in a position to influence Rajendra Kumar and develop intimacy with him. P.W. 6 then posed himself to be buyer if Narcotic drugs and informed the accursed-appellant" Rajendra Kumar that he was in search of such drugs. Accused-appellant Rajendra Kumar at the beginning had some hesitation but ultimately be sat impressed by P.W. 6's behaviour and then he agreed to arrange Charas (Hasis) for him. After bargaining, the price was fixed at Rs. 20.000/- per Kilograms. It was further agreed that Rajendra Kumar or his would make delivery of Charas in an auto-rickshaw. It was agreed that P.W. 6 would pay the money at auto-rickshaw at the time of delivery. For some time Rajendra Kumar left his shop and reappeared with other accused who also discussed about the price and piace of delivery of charas. In pursuance of the agreement, accused appellant Haldhar Kumar Singh brought auto-rickshaw bearing registration No. HIN 9191 and kept the same near the shop of Rajendra Kumar. Then Haldar Kumar Singh went away for bringing Hasis and came back after ten minutes with air bag'. Haldar Kumar Singh handed over the air bag saying that it contained about 4 Kilograms of Charas, P.W. 6 was satisfied by taking small of the materials and all the three then sat in the auto rickshaw with the bag containing Hasis, Rajendra Kumar and Shrawan Kumar (P.W. 6) sat on the back seat holding the air bag in his hand. Haldar Kumar Singh sat along with tempo driver on the front seat. When the auto rickshaw was about to start, then as designed earlier, P.W. 6 gave signals thereupon the other members of the raiding party surrounded the auto rickshaw, Both the accused-appellants were challenged by N. Jha (P.W. 6) for being in possession of Charas. It is stated that both the accused persons admitted to be in possession of Charas. P.W.5 inspected the contents of air bag in presence of the witnesses namely Shudeo Prasad. Marandi and Ratneshwar Sharma. The bag contained three pieces of Charas in the form of cakes and 15 numbers of full length and 18 numbers of pieces of Charas in the form of sticks. As the challenge was made in the public place on the road, both the accused persons, namely, Rajendra Kumar and Haldar Kumar Singh was taken into custody along with the materials which were taken charge of by D.S.P. Shri M. Jha (P.W. 5) alone with auto rickshaw driver Ranjit Singh. The C.B.I. team brought both the accused persons, witnesses of the seizure and the auto rickshaw to the C.B.I. Office. Thus the materials in the air bag were weighed separately and on weight men in total 3,590 K.G. were found. All the samples were drawn separately such as cakes and stricks. There were kept separately sealed and marked with individual identity numbers. The three cakes and the sticks were packed duly sealed and signed by all persons present. A detail memorandum to the proceeding relating to seizure, arrest and taking of samples was prepared which was signed by all the members of the raiding party, the two independent witnesses and the driver of the auto rickshaw. The case was investigated by Shri Sarwan Kumar (P.W. 6). D.S.P., C.B.I, and during the course of investigation, seized packets if Gharas were rent to C.F.S.L., C.B.L. New Delhi for chemical test and report. On examination of the samples by Sri C.B. Bansal, senior Investigating Officer (Chemistry) C.S.P. New Delhi, it was found that the samples gave positive test for Charas. After closure of investigation, charge sheet was submitted under Article 20 read with Rules 20 and 21 of the Act and also under Sections 29, 20 and 21 of the Act.

(3.) Consonance was taken by the Judicial Commissioner. Ranchi on 9.6.1992 and then the case sent to the court of the 5th Additional Judicial Commissioner Ranchi for trail. Charges were framed vide order Dated 4.8.1992 under Sections 29, 20 and 23 of the Act read with Rules 20 and 21 the Narcotic Drugs and Psychotropic Substances Rules.