SUNIL AND OTHER Vs. STATE OF BIHAR

JUDGEMENT

(1.) By way of the present appeal, appellants in both the above mentioned appeals seek to challenge the judgment of conviction dated 01.08.2003 and order of sentence dated 05.08.2003, passed by Shri Anil Kumar Verma, the then District and Sessions Judge-cum-Special Judge, Buxar in NDPS Case No. 5 of 2002, by which the appellants in both the above mentioned appeals, stood convicted under Section 20(b)(ii) (B) of N.D.P.S. Act and were sentenced to undergo R.I. for five years, each. By the said judgment, the appellants were acquitted from the charge under Section 47a of Bihar Excise Act, 1915.

(2.) Prosecution case as per the written report of S.I. Binay Kumar Sharma, Officer In charge, Buxar (M) police station, in short is that while he along with A.S.I. Nagdeo and some constables were on patrolling on 02.06.2002 at 10.30 A.M and reached to Buxar-Ara road near police station turning, at about 12.15 P.M., one Mini Bus with registration No. U.R.I. 1092 arrived from the side of Ara and routine checking was started and found that the two persons were sitting on seat nos. 4 and 5 upset and enquired them about the contents kept in the brief case, which was kept by them on their legs, on which, they disclosed that some ganza has been kept in the brief case, they were asked to open the said brief case and on opening, ganja contained in sky blue polythene wrapped with Times of India newspaper, was found and the same was seized in presence of two copassengers, namely, Birendra Yadav and Bhupesh Kumar Dubey. The recovered ganja was weighed, which was found to be six kilograms. Thereafter, seizure list was prepared, which was signed by the witnesses as well as by the accused persons. Accused persons were asked about their right to be searched before the Magistrate, on which they refused to be searched in front of the Magistrate. It is also the case of prosecution that superior officers were informed about the recovery on phone and sample of the recovered ganza was separately prepared for its chemical examination, which was kept in a tin container of zarda and rest of the ganza was also sealed. Signature of the witnesses as well as the driver and conductor of the said Mini Bus was taken and then again senior officers were informed.

(3.) On the basis of the above, a case being Buxar (Ind.) P.S. Case No. 8/2002 was registered under Section 20 of the NDPS Act as well as Section 47a of the Excise Act. The accused persons and along with the seized article were produced before the Special Judge, Buxar on 03.06.2002 and permission was obtained for sending the seized ganza for chemical examination to Forensic Science Laboratory. Charge-sheet was submitted against the accused persons on 31.07.2002 and report of the Forensic Science Laboratory was received on 27.02.2003 and it was found that the ganza was found in the sample sent for chemical examination.