NAIMUDDIN @ THARU Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal is against the Judgment dated 25.11.2002 of the 4th Additional Sessions Judge. Motihari. passed in Excise Case No. 38/98/04/02 whereby the appellant has been convicted under Sec.23 of the NDPS Act and sentenced to R.I. for ten years and a fine of Rs.1,00,000.00 and in default of payment of fine to undergo R.I. for one year.

(2.) THE prosecution commenced with the complaint (Ext.6) filed by Prakash Sahay, Inspector. Customs Department, posted at Land Custom Station, Raxaul. It was alleged in the complaint that a secret information was received by the officials of the department about movement of Charas from Nepal to India and acting on this information he (complainant) along with personnels of the department was on strict survelience at Bus Stand, Koiria Tola, Raxaul. In course of that a person was found moving in suspicious manner in Koiria Tola, Bus Stand. The person was enquired about his identity whereupon he became nervous and started giving evasive reply. The person was asked to accompany them to the Customs office and that while proceeding on the way to the office that person confessed that he was carrying Charas with him. That person (who is the appellant) was produced before Superintendent. Land Customs Station. Raxaul and two independent witnesses were also called and a search of the person (appellant) was carried on and as result of search 4 kgs. of Charas concealed in anklet of his two legs was recovered. After recovery, seizure list (Ext.3) was prepared by the complainant Prakash Sahay (P.W.4) and the seizure list was signed by the two independent witnesses Bablu Shrivastava and Vijay Shrivastava. Thereafter, the voluntary confessional statement (Ext.2) of the appellant was recorded in presence of two independent witnesses and the confessional statement was written by one Manoj Kumar because the appellant was illiterate and he was unable to write his confession. In his confessional statement the appellant disclosed his identity as Naimuddin @ Tharu son of Sahebjan Mian of village Buddhuanha P.S. Chauradano, District East Champaran and he also stated that at that time he was residing in the house of one Jagdish Prasad in Koiria Tola, Raxaul. The appellant was also interrogated by the Superintendent, Customs. Jagdish Prasad, (P.W.3) which was written by the said Manoj Kumar. The interrogatory statement has been marked as Ext.2 and it bears the signatures of P.W.4 on its pages and the signatures have been marked as Ext. 1. 1/1. 1/2 and 1/3. A Panchanama Ext.4 was also prepared by the complainant (P. W.4) with regard to recovery of Charas and it was signed by the witnesses Vijay Kumar Shrivastava and Bablu Srivastava. A sample of recovered Charas was taken, sealed and it was sent for chemical examination. Ext.5 is a chemical examination report of Assistant Chemical Examiner. Government Opium and Alkaloid Works, Gazipur (U.P) that the sample was received in duly sealed condition and on examination it was found to be Charas within the meaning of NDPS Act. 1985. The recovered Charas was also sealed and kept with the Customs Department in its godown. The cognizance of offence was taken on the complaint filed by the complainant and the appellant was put on trial and after conclusion of trial he has been convicted and sentenced as above.

(3.) FIRSTLY , I take UP the evidence of the complainant (P.W.4) who deposed that on 11.10.1998 while he was posted as Inspector in Land Customs Office, Raxaul, he received a secret information that Charas was being carried near Koiria Tola. On receiving this information he constituted a raiding party and proceeded towards Koiria Tola. Bus Stand where he saw that one person was feeling some difficulties in his movement. Noticing this he interrogated that person whereupon he became nervous and on touching his body it was felt that he was carrying something and on enquiry he stated he was carrying Charas. Learning this he took that person (appellant) to the Customs office and in presence of Superintendent of Customs in the office and also in presence of the two independent witnesses, 4 kgs. of Charas was recovered from the possession of the person (appellant). He deposed that he prepared a seizure list with regard to the recovery and the seizure list was signed by the two witnesses. The seizure list has been marked as Ext.3. The complainant further deposed that a Panchanama of the recovered Charas was also prepared and the panchanama was also signed by the two independent witnesses, namely, Vijay Kumar Shrivastava and Bablu Shrivastava. The Panchanama has been marked Ext.4. The complainant further deposed that the apprehended person disclosed his name as Naimuddin @ Tharu (Appellant) and he also confessed and the confessional statement was written in the pen of Manoj Kumar because the appellant was illiterate. The confessional statement has been marked as Ext.2/1. The complainant also deposed that he took sample from the seized Charas and it was sent for chemical examination to Government Opium Alkaloid Works. Gazipur (UP.) and the examination report was also received and the chemical report has been marked Ext. 5. The complainant continued to depose that he got his complaint prepared and then he gave it to Shri Lok Bahadur Sahay, the lawyer for Customs Department for filing a report in Court. He also deposed that the Charas recovered from the appellant was deposited in the godown of the Customs Department. At para -12 of his cross -examination he accepted that the complaint petition filed by him does not bear his signature. Here the learned counsel for the appellant argued that the complaint petition does not bear the signature of the complainant. The learned A.P.R replied that the complaint petition bears the signature of the lawyer through whom it was filed but mistakable due to hurry in work the signature of the complainant could not be put on it, but the complaint petition was prepared by the complainant and the complainant has also deposed in support of the averment in the complaint. At para -16 of his cross -examination, the complainant admitted that the seizure list does not bear the signature of the Superintendent of Customs. Here it was argued by the learned A.P.R that the seizure list has been signed by the complainant and the witnesses and the Superintendent of Customs (P.W.3) has fully supported in his evidence the prosecution case about the search and seizure having been made in his presence. The complainant further stated at para -16 that a format was existing in the department regarding recovery of seizure and that the seizure list was prepared in that format. He also deposed that in para -17 for the purpose of seizure and also for security reasons the appellant had been brought to Customs office for conducting a search of the appellant. He also deposed at para -18 that the seized Charas was weighted in the office and it was found to be 4 kgs. by weight. He further deposed that samples were taken from all the 8 packets and on the (Sic) ? it was sent for chemical examination. He also deposed that the remaining Charas was kept in Raxaul godown of the department. At para -32 of his evidence he deposed that under the orders of Superintendent of Customs he has kept the seized Charas in Raxaul Malkhana of the department. Thus, the complainant fully supports the prosecution case about the appellant having been seen in suspicious condition and when on interrogation he gave evasive reply he was taken to Customs office where search was conducted in presence of Superintendent of Customs and 4 kgs. of Charas from the Anklets on the legs of the appellant was recovered and the sample of the Charas was sent for chemical examination. Vide chemical examination report (Ext.5) it was found to be Charas.