DHAN BAHADUR LAMBA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE present appeal has been filed on behalf of seven appellants, who have been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as the 'Act'). They have also been sentenced to undergo R.I. for 11 years each and also to pay a fine of Rs. 1,00,000/ - (Rupees one lac) each and, in default, to undergo further imprisonment for one year each. The appeal was originally filed as Jail Appeal and the notice could not be given to the Central Government, but subsequently, the Counsel of the Central Government was informed and the brief was handed over to him and Sri Jawahar Prasad Karan, Advocate was heard. Appearance was also subsequently filed on behalf of appellants and Mr. Syed Faiyaz Hussain was heard for the appellants.

(2.) THE prosecution story is like this: On a secret information by the informant, the Assistant Collector (Customs), Raxaul formed a preventive party under his leadership along with staff of different rank for verification of the information which related to illicit drug trafficking in a small hutment located inside Railway line, Raxaul. The raiding party, accordingly went to the hutment on 24th March, 1992 at about 4.00 a.m. in the morning and raided the same where eight persons were found under influence of heroin. On search of their person, small packets were recovered from their possession which were seized in presence of the witnesses. The said seized heroin weighed 600 grams, valued at Rs. 60,00,000/ - (Rupees sixty lacs). Some other materials, including spoon, empty matchbox, disposable syringe, weigh balance and cigarette papers were also recovered. The heroin was found in 8 small packets. A seizure memo was accordingly prepared by Bimal Choudhary, Inspector of Excise and Customs and all the eight persons were arrested and forwarded to Court. They were produced before the Chief Judicial Magistrate, East Champaran, Motihari who remanded them to jail custody. Thereafter, a prosecution report in the form of complaint (Ext -1) was filed and cognizance was taken by the chief Judicial Magistrate under Sections 12 and 14 of the Act and subsequently the case was committed to the Court of Session where the accused -persons were tried. However, one of the accused Raju Thapa was found to be a minor below 16 years of age and, therefore, his case was separated from the case of others to be tried under the provisions of the Juvenile Justice Act. The rest seven persons, i.e. the appellants were tried and sentenced as stated above. The accused -persons have denied the allegations against them and pleaded not guilty No defence evidence has been adduced on. behalf of accused -persons in this case. They simply denied the charges against them which was subsequently framed under Section 23 of the Act.

(3.) P .W. 1 Rajesh Kumar Srivastava also happened to be a Customs Officer. According to him, he had received information from the Assistant Collector of Customs that he had to be a member of the raiding party. Accordingly, he readied himself and he accompanied other personnel of. the Department, including Inspector, Constables. Assistant Collector and the Superintendent and at about 5,30 a.m. in the morning on 24th March 1993, they went to a hut situated near the Railway Gumti at Raxaul where they found eight persons lying under the influence of some intoxicant. Their persons were searched and one packet each was recovered from their persons. Each packet, recovered, contained heroin. Some other articles were also recovered. However, on digging some earth from inside the hutment, 600 grams of heroin kept in a plastic bag was recovered. The materials were seized and those eight persons were taken into custody and they were subsequently forwarded to Court to be remanded custody. In his cross -examination, this witness has stated that nothing was recovered from the possession of one of the appellants, namely, Birendra. He also further stated that the persons residing near the hut were not called as witness at the time of search. P.W. 2. J. N. Lal Verma also happens to be a Customs Officer and he has also stated that he had joined the raiding party along with others and when they entered in the hut they found eight persons lying under the influence of intoxicant. According to him, two persons were called and in their presence, the search was made and the articles were recovered which were seized and those persons were caught and later forwarded to the Court. However, in his cross -examination, he has stated that no attempt was made to bring those persons to their senses after they were caught and he also further stated that though searches were made separately, no separate seizure list was prepared P.W. 11, G.S. Tondon is also an Inspector of Customs and Excise and he had also gone to the P.O. along with other staff of the raiding party and when the hut was raided, heroin was recovered and seizure list was prepared. He also stated that later statements of these persons caught, were taken by the Superintendent Sri B.K. Sinha at the local jail. He also proved the statement recorded, marked Ext -3. He also further stated that seizure was made and the seized heroin was sent to the expert for analysis and report. In his cross -examination, he stated that he has no idea about the owner of the hut. However, according to him, there were three huts which were searched and he also cannot say as to what quantity of heroin was recovered from which accused. He also further stated that the statements of these persons were recorded at the P.O., but no independent witness was called from the neighbourhood. The complainant Bimal Choudhary has not been examined in this case and the superior Officer, including the Superintendent has also not been examined in this case.