MD IDDU Vs. UNION OF INDIA

JUDGEMENT

(1.) THESE appeals arise out of the judgment dated 18th April, 2006 passed by the 4th Additional Sessions Judge, Muzaffarpur in Trial No. 12 of 2006 by which the two appellants have been convicted to undergo rigorous imprisonment for ten years each for the offences punishable under Section 20(2)C and 23(c) Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act"). The appellants have remained in custody for six years and two months.

(2.) THE prosecution case briefly stated is that the appellants were sitting on a bench at Muzaffarpur Railway Station. Six briefcases were kept in front of them. The complainant who had received information regarding the carriage of Ganja suspected that the appellants were carrying Ganja in the said briefcases and retained them for search in order to ascertain whether these appellants were carrying the Ganja. It is said that one of the persons on seeing the raiding party escaped from the railway station. In the presence of witnesses, search and seizure was made by forcibly opening the briefcases and the statements (Exhibit -3 and 3/1) of the appellants was recorded by PW 6. The investigation proceeded after the search and seizure was made.

(3.) COUNSEL for the appellants has pointed out several anomalies in the procedure and manner of conducting the search and has challenged the seizure and the procedure by which the samples were taken by the complainant during the seizure. The first argument raised on behalf of the appellants is that the Ganja was not recovered from the conscious possession of the appellants. It is submitted that there is no evidence to show that the seized briefcases belong to the appellants as the prosecution has brought no material on record to show that the articles in the briefcases belong to these two appellants. It is further submitted that the body search of the appellants was also made, however, the key to the briefcases were not recovered from their possession which indicates that infact the briefcases do not belong to the appellants. It has further been pointed out that the seizure list witness PW 4 has stated that he was present at the railway platform because he was waiting to get the train for Samastipur. The defence has brought on record the statement of the Superintendent of Railways, Muzaffarpur (Exhibit -A) in which it has been stated that the train for Samastipur had left at 6 PM and thus, this witness had no occasion to remain present at the railway platform. On the basis of the aforesaid statement, Counsel for the appellants not only challenges the procedure for conducting the search but also submits that the Ganja was not recovered from the conscious possession of the appellants.