LAWS(J&K)-2011-6-15

MUSHTAQ AHMAD Vs. STATE

Decided On June 03, 2011
Mushtaq Ahmad and Anr. Appellant
V/S
State And Ors. Respondents

JUDGEMENT

(1.) Challenge in these two Criminal Appeals is to the judgment recorded by Learned Third Additional Sessions Judge, Jammu on 6th May, 2009 in case titled Narcotic Control Bureau v. Gulzar Ahmad and Anr. (File No. 13/Challan), convicting the Appellants of offence punishable under Section 20(b)(ii)(c) of Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter ''the Act'') and sentencing them to 12 years rigorous imprisonment, a fine of Rs. 2.00 lacs and default sentence of one year rigorous imprisonment. Before, a closer look at grounds of attack set out in the memoranda of appeals, it would be appropriate to have an overview of background facts, discernible from the record.

(2.) The Narcotic Control Bureau (NCB for short), Zonal Unit, Rehari, Jammu on 5th April, 2004 received information from reliable sources that a transaction of Charas was to take place on the said date in Rajinder Bazar, Kanak Mandi, area of Jammu city. The information prompted Intelligence Officer NCB, Jammu to tele-phonically inform Zonal Director, NCB, stationed at Chandigarh, seek instructions, constitute a Naka trap team associating officers/officials of the Customs Department, Jammu and two independent witnesses and lay Naka at Rajinder Bazar, Kanak Mandi. The Naka party at about 8.30 PM spotted the Appellants one holding Card Board Carton (Box) and another a bag in his hand, proceeding from Residency Road to Rajinder Bazar and intercepted them at Cholay Bhathuray Wali Gali, Chowk Kanak Mandi, Jammu. The Appellants when questioned by the Intelligence Officer NCB, disclosed their identity. The Intelligence Officer, NCB (''complainant'' for short) served notice under Section 50 NDPS on the Appellants, explained contents of the notices and gave them an option to get their person and the Card Board Carton and bag searched in presence of a Gazetted Officer or a Magistrate. The Appellants opted for their search in presence of a Gazetted Officer. The complainant, accordingly requested Shri S. L. Jarangal, Superintendent Customs to come on spot, so that the Appellants were searched in his presence. The Superintendent of Custom after introducing himself to the Appellants, made the Appellants aware of their right to get searched in presence of any other Gazetted Officer or a Magistrate. The Appellants expressed their faith in Superintendent of Customs and their willingness to have their search taken in his presence.

(3.) The Appellants were formally charged of the offence alleged in the complaint. The prosecution after the Appellants denied the charge, examined listed witnesses including the complainant, Superintendent Customs and other witnesses of the Naka team, in whose presence the substance later found to be Charas, was recovered.