MOHAMMAD MAQBOOL LONE Vs. INTELLIGENCE OFFICER NARCOTICS

JUDGEMENT

(1.) The appellant, after having been convicted by court of learned Sessions Judge Kathua (hereinafter to be referred as trial court) for commission of offence under section 8(c) of the NDPS Act read with sections 20(b)(ii)(c) of the NDPS Act (for short the Act) and sentenced to undergo rigorous imprisonment for 20 years and payment of fine of Rs. 2 lacs, has challenged the judgment dated 08.01.2015 (hereinafter to be referred as the judgment impugned) and order dated 10.01.2015 through the medium of present appeal on the various grounds legal as well as factual, as narrated in the memo of appeal. Case of prosecution:

(2.) Briefly stated, the complaint was filed against the appellant for commission of offences under sections 8, 20 and 60 of the Act in which it was stated that the secret information was received from the source that Drug Trafficking from Kashmir Valley to Delhi in Truck No. JK05- 6906 dated 13.03.2013 is going on and the supply of drug may be in Transport Nagar, Delhi. The above said information was given in writing by Shri Maneet Kumar, Intelligence Officer (IO) to the Superintendent NCB Jammu i.e., Ms. Mehak Jain, who constituted the team under her supervision and Naka was laid on 13.03.2013 at night along with police on Lakhanpur road, opposite to Lakhanpur Police Station. At around 22:45hrs on 13.03.2013 two persons, namely, Shri Ajay Sharma and Shri Darshan Singh were crossing that area. Shri Maneet Kumar Intelligence Officer requested them to accompany the NCB team to the place of naka to witness the whole procedure of seizure, if any. At about 23.15hrs Shri Maneet Kumar Intelligence Officer stopped Truck No. JK05-6906 which was coming from Jammu.. Sh. Maneet Kumar, IO introduced himself and rest of the NCB team members to driver and asked him for his introduction. He introduced himself as Mohd. Maqbool Lone. Shri Maneet Kumar intimated him their purpose of searching the vehicle. Before search notice under section 50 of the Act was given to the driver by Shri Maneet Kumar but he declined search before Magistrate and Gazetted Officer and in reply stated that "He does not require any gazetted Officer or Magistrate, He can take his search". Then Shri Maneet Kumar instructed his sepoy Shri Naveen Kumar to search the vehicle. Then the sepoy started searching the vehicle in presence of above said witnesses. While searching Shri Naveen Kumar saw Apple box carrying packets. After that Shri Naveen Kumar pulled out that Apple Box. Shri Maneet Kumar asked Mohd. Maqbool Lone to take out all the packets from the Apple Box. The packets were taken out of the Apple Box by Mohd. Maqbool Lone in the vehicle itself and counted, 08 packets were found. All the 08 packets were wrapped with Brown coloured packing tape. After removing the tape, it was found to have been covered by newspaper. On removing the News Paper, the transparent polythene containing total no. of 32 small black coloured balls, was found. Then Shri Maneet Kumar extracted a small quantity of material from the black colored balls, mixed them thoroughly and tested with the DD KIT and found the result positive for Charas. Then Shri Maneet Kumar weighed all the 32 black coloured Balls with the weighing machine and found the weight of all the Black coloured balls as 14.978 kgs. Shri Maneet Kumar prepared the recovery cum seizure memo on the spot and was signed by the accused and the witnesses. All the black coloured balls were mixed together and two samples of 24 grams each were taken. These samples were put into 2 plastic transparent envelopes and were heat sealed. Then the same were packed into two white paper envelopes. A white paper slip was pasted at the opening place of these envelopes so that they could not be opened without tearing. These samples were marked as S-1 and S-2. The remaining charas i.e. 14.930 Kgs was put into a big transparent polythene and was heat sealed. After heat sealing, it was put into a white marking cloth bag and was stitched. It was marked as Lot-A. After that, the packing material and Apple Box were put into a white marking cloth bag and was stitched and it was marked as Lot-P. After that the stitched places of LotA and Lot-P were sealed with seal of Narcotics Control Bureau, JMM-03 four and seven seals respectively. Similarly all the 4 corners of samples S-1 and S-2 were also sealed with Narcotics Control Bureau JMM-03 seals. When he was asked about the vehicle Mohd. Maqbool Lone told that the Truck was registered in the name of his father. Panchnama, test memo, recovery cum seizure memo were prepared on the spot. After that, Truck no. JK05 6906 was taken into custody by Shri Maneet Kumar. All legal formalities were completed in the presence of two independent witnesses. Notice under section 67 of the Act was given to the accused and voluntary statement was recorded. In his voluntary statement, the accused person admitted the recovery of 14.978 kgs Charas from his possession/Truck. After completion of all the legal formalities, the said person was arrested at 12:30 hours on 14.03.2013 and personal search was taken. The arrest memo and memo of personal search were prepared. The seized goods Lot-A, packing material Lot-P and duplicate samples S-1 & S-2 were deposited in the Malkhana for safe custody and Godown Receipt was obtained after making proper entry in Malkhana/Godown Register. The information for arrest, search and seizure was sent to the higher authority under section 57 of the Act i.e., jurisdictional police station and relatives of the accused persons. Test-Memo was prepared and one sample marked as S-1 along with test memo was sent to the CRCL, New Delhi on 14.03.2013 for chemical analysis through Shri Tilak Raj, Driver vide letter No.JZU/NCB/Cr. No.1/2013 dated 14.03.2013 and said Shri Tilak Raj driver deposited the sample in CRCL, New Delhi, and obtained the receipt from CRCL, New Delhi. The Chemical Analysis Report received from CRCL New Delhi on 04.06.2013 vide their Letter F.No 1/ND/R/2013-|CLD-1062( N) dated 24.05.2013 stated the sample found positive test for Charas.

(3.) The charges for commission of offence under sections 8 and 20 of the Act were framed against the appellant vide order dated 11.11.2013. As the appellant did not plead guilty, the complainant was directed to lead evidence. The complainant has examined CW No. 1 Maneet Kumar, CW No. 2 Mehak Jain, CW No. 3 Rakesh Singh, CW No. 4 Naveen Kumar, CW No. 5 Tilak Raj, CW No. 7 Ajay Kumar, CW No. 8 namely Darshan Singh and CW Pawan Dev, as witnesses in support of the charge but the appellant has not examined any witness in his defence. Prosecution Evidence: