TALAB KHAN Vs. U O I

JUDGEMENT

(1.) Heard, perused the challan papers.

(2.) It appears that on receipt of a written secret information, Superintendent, Customs, Range Ramgarh issued a search warrant and in compliance thereof Shri S.K. Khatri, Customs Inspector made a search of the house of Mangal Singh, resident of village Netsi in presence of motbirs and other Customs Department officials. It is alleged that a bag containing 10 packets was recovered there from. The contents of those packets were tested by the drug detection kit and it was found that those packets contained heroin weighing 10.175 Kg. The samples were taken from those packets and those were seized and sent to the Government Opium & Alkaloid Works, Neemuch and also to the Central Revenues Control Laboratory, New Delhi for chemical analysis. Statement of Mangal Singh was recorded under section 67 N.D.P.S. Act and under section 108 Customs Act, who denied his knowledge about the heroin, but stated that the said bag containing those packet was stored by one Hazi son of Mando resident of village Kujalari, Distt., Jaisalmer 2,3 days before the alleged recovery. Mangal Singh was found to be a disabled person. During investigation, it transpired that the said contraband article was supplied by co-accused Hazi at the Indo Pak border and that same was kept by his father Mando in the house of Mangal Singh. The statements of Mando & Khamisha were also recorded under section 67 of the N.D.P.S. Act. The statement of petitioner Talab Khan was also recorded on 7.2.1994 under section 67 of the N.D.P.S. Act ready with section 108 of the Customs Act, wherein he specifically admitted that HaziTs father Mando had assured him to pay an amount of Rs. 1500/- for keeping those packets of heroin, which Hazi had imported from Pakistan. He also admitted that Hazi had handed him over a plastic bag containing 10 packets of heroin and asked him to deliver that consignment to his father Mando. The petitioner in his statement further, admitted that he had concealed that plastic bag in his TGoI (doom) and handed over the same to Mando next day. He further stated that on 30.1.1994 he had also accompanied Mando, who had gone to the house of Mangal Singh in village Netsi and placed that consignment there. He also stated that when Mangal Singh inquired as to who he was, Mando had told him that he was Hazi;.

(3.) The contention of Shri Khatri is that the petitioner has retracted his alleged statement recorded under section 67 N .D.P.S. Act in the court, that there is not a fringe of evidence connecting the petitioner with any offence punishable under the provisions of the N.D.P.S. Act. His another contention is that as. per chemical analysis report dated 18.3.1994 of the Government Opium & Alkaloid Works, Neemuch after qualitative & quantative analysis the contents of the samples sent to it were found to be opium derivatives i.e. Diacetyl morphine within the meaning of section 2 (xvi) of N.D.P.S. Act, 1985, whereas the report of the chemical examiner of the Central Revenues Control Laboratory, New Delhi dated 16.3.1994 discloses that each of the two samples sent to it did not answer positive test for diacetyl morphine, but those were positve for Benzo diazepines (diazepam), Barbiturates (pheno bonibital) and phenolphthalein. Thus, according to him the findings of the two chemical examinerss report are divergent. He has, therefore, prayed that the petitioner be released on bail.