SAYED MOHD NAEEM Vs. NARCOTIC CONTROL BUREAU JODHPUR

JUDGEMENT

(1.) THE Criminal Appeal No. 532/2003 has been filed by appellant Sayed Mohd. Naeem (for short `the accused' hereinafter) under Section 374 of the Code of Criminal Procedure, 1973 (for short `the Code' hereinafter) and Criminal Appeal No. 116/2005 has been filed by Union of India through Narcotics Control Bureau under Section 377 of the Code. Both these appeals are directed against the judgment and order dated 13. 3. 2003 passed by Special Judge, (NDPS Cases), Bikaner (for short `the trial Court' hereinafter) in Sessions Case No. 09/99, whereby the trial Court convicted the accused of the offence under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the N. D. P. S. Act' hereinafter) and sentenced him to undergo ten years rigorous imprisonment with a fine of Rs. 1,00,000/-, in default of payment of fine further to undergo one year rigorous imprisonment. Aggrieved by the judgment and order impugned, the accused has filed Criminal Appeal No. 532/2003 and aggrieved by the inadequate sentence awarded by the trial Court, the Union of India through Narcotics Control Bureau has filed Criminal Appeal No. 116/2005 seeking enhancement of substantive sentence as well as sentence of fine. Since both these appeals are directed against the same judgment and order, with the consent of learned counsel for the parties, they are heard together and decided by this common judgment.

(2.) BRIEFLY stated the facts of the case are that on 22. 8. 99 PW. 8 Jagdish Purohit received a secret information at 17. 30 hours to the effect that accused is likely to take delivery of contraband heroin between 3 to 5 P. M. on 23. 8. 99 at village Ranjeetpura and would go to Bikaner by bus. The information was found to be reliable and was recorded in Form No. 1 by Jagdish Purohit and conveyed to Zonal Director, Narcotics Control Bureau, Jodhpur vide forwarding letter Ex. P. 55, the carbon copy of which has been placed on record as Ex. P. 56. On receipt of the secret information vide Ex. P. 55 and P. 56, PW. 7 Rajendra Singh Khangarot, Zonal Director, Narcotics Control Bureau, Jodhpur constituted a team vide Ex. P. 57 comprising of PW. 5 Narendra Singh, PW. 8 Jagdish Purohit, PW. 4 S. S. Chouhan, PW. 6 Anuranjan Gupta and others for search and seizure. On 23. 8. 99 as per the information the team reached near bus stand Ranjeetpura and noticed one person standing near to Khejdi tree having a bag in his hand. The raid party introduced themselves to the accused and apprised him of the secret information regarding his being in possession of contraband herein. A notice under Section 50 of the N. D. P. S. Act was served giving him option in be searched in the presence of Judicial Magistrate or Gazetted Officer vide Ex. P. 19. Motbirs were called, they were given notice and after taking their consent to become Motbirs in the presence of Motbirs and Gazetted Officer PW. 5 Narendra Singh, Assistant Director, N. C. B. , Jodhpur, the search was carried out. On the search of bag which the accused was holding in his hand, it was found that the bag was containing 6 kg. 750 grams of heroin. Two samples of 5 grams each were taken. The samples were sealed on the spot. The remaining contraband heroin was also sealed on the spot. Summon Ex. P. 20 requiring the accused to make statement under Section 67 of the N. D. P. S. Act was issued on 23. 8. 99 at 20. 25 hours. The notice was served on the accused. The accused made a voluntary confessional statement vide Ex. P. 21 under Section 67 of the N. D. P. S. Act. Thereafter vide Ex. P. 22, the accused was arrested on 23. 8. 99 at 23. 55 hours. After usual investigation, a complaint Ex. P. 54 for the offence punishable under Sections 8 (c) r/w Sections 21, 23, 27a and 29 of the N. D. P. S. Act was filed before the trial Court against the accused. The trial Court framed the charges. The accused denied the charges and sought trial. The prosecution adduced evidence by producing as many as nine witnesses and documents Ex. P. 1 to Ex. P. 65. The accused made statement under Section 313 of the Code and denied the allegation and stated that he was brought from Delhi to Jodhpur and thereafter to Bikaner. No proceedings against him were taken at Ranjeetpura as also no heroin was recovered from him. The trial court on appreciation of the evidence produced by the parties convicted the appellant for the offence under Section 8/21 of the N. D. P. S. Act and sentenced him as above; however acquitted him of the offences under Sections 8/23, 27a and 29 of the N. D. P. S. Act.

(3.) PW. 8 Jagdish Purohit, Enforcement Officer, at the relevant time posted at Narcotics Control Bureau, Jodhpur unit has stated that on 22. 8. 99 at about 5. 30 P. M. , he received a secret information to the extent that accused Sayed Mohd. Naeem, a fair coloured person having height about 5. 8 feet to 5. 10 feet is likely to take delivery of contraband heroin in village Ranjeetpura. The quantity of heroin tentatively was 5 to 8 kg. as per the secret information. The information was reduced to writing on which the thumb impression of informant (Mukhbir) was taken, thereafter, it was sealed in an envelope. The information was forwarded by a forwarding letter vide Ex. P. 55 narrating therein the information received by him to Zonal Director, Narcotics Control Bureau, Jodhpur. Ex. P. 55 states details of the information, description and name of accused, his wearings, time and place and the date when the accused was likely to take delivery as also the weight of the contraband heroin. It has also been stated that the information is reliable. Ex. P. 56 is the carbon copy of the information received by PW. 8, the original of which was kept in a sealed envelope and forwarded to Zonal Director, Narcotics Control Bureau, Jodhpur. Before the trial Court PW. 8 has proved the secret information received by him and reduced to writing vide Ex. P. 56.