KENJENGBAM ARUN SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) The sole appellant is aggrieved by his conviction under S. 20(b)(ii)(c) of the NDPS Act for which he has been awarded R1 for 13 years and a fine of Rs. l,00,000/- (One Lac) in lieu whereof he is to undergo a further imprisonment of one year R.I. The impugned judgment dated 18th March, 2006 has been rendered by learned Additional District and Sessions Judge-cum-Special Judge, NDPS Act, Kishanganj in Special Case No. 8 of 2001/trial No. 05/ 2001 which arises out of Kishanganj Unit Case No. 21, NDPS Act/KNE/2001.

(2.) According to the prosecution, essential facts in brief are that on 23rd March, 2001 officials of the Custom Department. Kishanganj received a telephonic information that contraband ganja was being transported from Imphal to Calcutta by a bus bearing Registration No. MN-04/5255 via Kishanganj. On receipt of the information the Superintendent of Customs constituted a preventive team and the advance team of preventive officers located the bus in question at about 5:15 a.m. when it was passing through Faring Gola on NH-31. After chase it was intercepted at Khagra Railway Crossing, Kishanganj. After disclosing their identity the preventive officers gave their identification and purpose of checking the bus. On option to get the bus searched before a Magistrate or a Gazetted Officer, the driver declined the offer of search by a Magistrate. During the search and checking some passengers came out of the bus to attend call of nature but one of the passengers tried to escape but was apprehended after chase. He disclosed his identity as K. Arun Singh, the appellant. On interrogation he admitted all the relevant and vital facts regarding ownership of the ganja and its being transported by the bus in conspiracy with owner of the bus. On such disclosure and confession that the ganja was being transported in a secret chamber under the floor of the bus, on request of the driver, khalasi and the accused, the bus was brought for search to premises of the Custom Office for safety and there two independent witnesses were called from nearby places because passengers did not agree to become witnesses as they were from different States. During search the floor of the bus was broken and from secret cavity smell of ganja was located and 225 kilograms of ganja wrapped in packets valued at Rs. 4,50,000/- was recovered. The preventive officers of the Custom Department seized the recovered ganja as also the bus and a panchnama and a seizure list was prepared in presence of driver, khalasi, independent witnesses and the accused- appellant and they put their signatures on those papers. The samples were taken as per law and sent for chemical examination. The driver, khalasi and the accused-appellant gave their voluntary statements and later on they were also subjected to interrogation by the Superintendent of Custom (P.W. 2) before whom they confessed their guilt and disclosed the name of the owner of the bus and that he also had full knowledge of the transportation of ganja. The driver, khalasi and the accused-appellant were arrested and the facts were reported to the authorities concerned for further action and after receiving their orders and directions complaint petition was filed, cognizance taken and the case was tried only against the accused-appellant. Apparently, the case against other persons was separated because they could not be made available to face trial.

(3.) During trial the prosecution examined 20 witnesses to prove the charge against the accused-appellant. P.W. 1 is a seizure list witness who has proved his signatures on the seizure list, panchnama and voluntary statements of the accused-appellant which have been marked as Exhibits 1, 1/1 and 1 /2 respectively. He has also proved his signature on the interrogatory statement of the appellant which has been marked as Exhibit 1/5. But he has stated that no vehicle was seized on the relevant date and no interrogation was made of accused persons. He was therefore declared hostile.