KIRAN DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal is against the judgment dated 27th November 2002/ 29th November 2002 of Additional Sessions Judge, Motihari passed in Excise Case No. 36 of 1999 whereby the appellant has been convicted under Sec.20 (ii) (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to undergo R.I. for 10 years and fine of Rupees one lack and in default of payment of fine, to undergo R.I. for two years.

(2.) PROSECUTION was initiated on the official complaint (Ext -4) as filed by P.W. 4 Jaydeep Kumar, Inspector, Customs Station, Raxaul, East Champaran. The prosecution case was that on 7th January 1999 at 2:30 P.M. while the complainant along with Customs Officials and Personnels was on preventive checking duty at the barrier of LOS, Raxaul, a Tanga carrying passengers coming from Birganj (Nepal) was checked. During the checking a packet wrapped with paper along with polythene bag was recovered. On being asked as to who was the owner of the said goods, a lady passenger (appellant Kiran Devi) accepted that both the things belonged to her. The box appeared to be heavier than its normal weight. She was asked about the contents of the box but she could not give any satisfactory reply. Two of the other passengers travelling on the Tanga were requested to act as Panches for search and seizure and they agreed. Thereafter, the box and the polythene bag along with appellant were brought to the Customs Office for thorough checking. After coming to the Office the said box was unwrapped and the polythene bag was searched before the Panches, Superintendent of Customs and a lady Inspector. After unwrapping the wooden box it appeared that its lower portion was attached with the higher portion with hinges. After breaking the hinges, a cavity was located and 8 big and 2 samll packets of Charas wrapped with plastic tapes were found in it, polythene bag was searched and miscellaneous foreign goods were recovered. The quantity of Charas was weighed and found to be 4 (four) kilograms and valued at Rs. 4,00,000/ - (four lacs) and the miscellaneous goods of third country origin was valued at Rs. 183/ - only The lady (appellant) was asked to give her voluntary statement which she gave and she admitted that she had brought Charas from Birganj (Nepal). She also stated that one Narayan Dai had handed over the box to her at Birganj for safe arrival at Raxaul where that person had to take delivery after paymerit of Rs. 500.00 (five hundred). In presence of the appellant, the Panches and the officers, three samples were taken from the said Charas for necessary chemical examination and necessary papers were completed. The appellant gave her voluntary statement (Ext - 1) and her interrogatory statement (Ext -4) was also recorded. The Charas as well as other goods recovered from the lady was also seized and a seizure -list (Ext -1) and her interrogatory statement (Ext -4) was also recorded. The Charas as well as other goods recovered from the lady was also seized and a seizure -list (Ext -3) was prepared. The appellant was arrested and produced before the Court and she was put on trial and on conclusion of trial she has been convicted and sentenced as above.

(3.) FIRSTLY , I take up the evidence of the complainant P.W.4. He deposed that on 7th September 1999 at 2:30 P.M. he along with other customs Official had checked the Tanga coming from Nepal side at Raxaul Barrier and in course of checking one box wrapped in paper and polythene bag was found in possession of the appellant. On query, the appellant admitted that the box and Jhola belonged to her. During trial the complainant identified the appellant in dock and he further deposed that on being asked the appellant failed to give any satisfactory explanation about the contents of the box. He also deposed that he tore the paper wrapped on the box which appeared heavier than its normal weight and after tearing the paper he found that the box was in two portions, one normal and another fixed with hinges. He brought the appellant and the box to the Customs Office. The box was opened in the Office and then 8 big bags and 2 small bags were recovered from the box and the packets contained Charas which was weighed and it was found weighing 4 Kg. The complainant further deposed that seizure -list with respect to the articles was prepared and a Panchnama was prepared and the voluntary statement of the appellant was also recorded. He further deposed that the Panch witnesses Dinesh Kumar Harlalka and Krishna Prasad signed the appellant 'svoluntary statement in the writings and signature of her which has been proved by the witness as Ext -1. The Panchnama prepared with regard to the recovery and seizure of Charas and other articles were signed by the Panches Dinesh Kumar Harlalka and Krishna Prasad and appellant Kiran Devi. The complaint petition itself was proved by the complainant as Ext - 4. In Para -12 of his evidence, he deposed that he took sample of seized article and sent it for chemical examination. During his examination -in -chief, the complainant did not say about having sealed the sample from the seized quantity of Charas. However, in Para - 18 of his cross -examination he stated that the sample was sealed but he further stated that any specimen of the seal was not kept in his Office nor there was any entry in any register of his Office with regard to sending of the samples for chemical examination and he further deposed that the article seized from the appellant had been kept in the godown of the Department. Thus the complainant who is searching and seizing authority does not adduce any reliable evidence about sealing of the sample and maintenance of record in his Office about sending of the sample for chemical examination. He has not stated anything about sealing the recovered and seized Charas which, according to him, was kept in the godown of the Department. Thus, the evidence on the point of the sealing of the seized article is also lacking in the deposition of the complainant.