MUBARAK AND ANR. Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE office of the Superintendent of Police, CBI, SIU (XI)-at New Delhi is stated to have been in possession of an information to the effect that the present appellants were actively engaged in activities of smuggling opium from Jhalawar (Rajasthan) to various parts of the country. A raiding party consisting of VS. Soman (PW 11) and A.N. Bhattacharya. Inspectors, P.C. Sharma ASI, Ram Kumar Head Constable, Surjan Singh (PW 1) and some other constables headed by Mehar Singh Dy. S.P. (PW-10) was deputed in verify the information. The raiding party reached Jhalawar on 17-18th of December, 1991 and camped in Poorvaj Hotel, Jhalawar. On 18-12-91 Mehar Singh contracted the source of the depart­ment who informed him that the present appellants, with huge quantity of opium, would reach Jhalawar at about 6 a.m. on 19-12-1991. Mehar Singh Dy. S.P. con­tacted the Income Tax Officer at Jhalawar and requested him to provide two Motabirs' to him to witness the search, seizure and arrest proceedings. Accom­panied with such Motabirs, namely, Abdul, Sattar Yaquini (PW 3) and Ram.Naram.. Income Tax Inspectors and the members of his party Mehar Singh Dy. S.R' reached Jeetmal's Dharamshala, near Bus Stand, Jhalawar, at about 5 p.m. on 19-12-1991. At about 7.30 a.m. he was informed by the 'contact' that the appellants were not reaching and that they would be arriving during the night. The raiding party returned.

(2.) MEHAR Singh, Dy. S.P. alongwith the two Motabirs, Abdul Sattar Yaquini and Ram Narain and the members of his own party, acting on the information of the "contact", stationed themselves during the night near the Bus Stand Jhalawar. At about 2.30 a.m. in the night (20-12-1991) the present appellants reached there on a motor cycle. RNR 3213 and stopped their vehicle in front of the gate of Bhagwati Lodge. Mubarik appellant was driving the vehicle and Zakir appellant was sitting on the rear seat with two heavy bags kept in the space between the two. The "contact" signalled the witness that the two were the desired persons, whereupon Mehar Singh approached them and disclosed his iden­tity. The appellants got nervous and tried to escape but were not allowed to do so by the witnesses. The Dy. S.P. disclosed his identity upon and gave the notice to the appellants of his intention to search their persons and belongings and that they may be taken to a Magistrate or to Gazetted Officer, for the purpose, as per their op­tion. He further told them that he himself was a Gazetted Officer and if they so con­sented they may be searched for their per­sons and possessions by him. The appel­lants expressed their readiness to be sear­ched by the Dy. S.P. On being questioned about the content of the big bags with them they reluctantly and hesitatingly told that there was about ninety kilo grams of opium in it. The big bags were opened in the presence of the two Motabirs and the members of the raiding party. One of the bags was found having two smaller bags in it, each containing 25 kgs. of opium. The other bag was also containing two bags, each containing 20 kgs. of opium. Mehar Singh Dy. S.P. prepared eight samples two each from the four packets found in the two bags and duly sealed them with his seal. Two fascimile seal (impression of the seal«used for sealing the samples) impres­sions were also separately prepared. The search of the persons of the appellants was also conducted. Certain currency notes (Rs. 397 from Mubarak arid Rs. 500 from Zakjr) and other belongings like watch and keys wefe recovered, from their per­sons and were seized vide Ex-P-3, their Yazdi make Motorcycle was also sei/ed and they were arrested. Mehar Singh Dy. S.P. took the seized articles and samples and the appellants to Delhi. He submitted his report Ex. P-l, alongwith the docu­ments prepared by him to the SP/CBI/SIU(XI), New Delhi. The S.P. registered Crime No. RC 12/91-SIU (XI) on 21-12-1991 at about 10.30 a.m. against the two appellants and entrusted the in­vestigation to Mehar Singh, Dy. S.P.

(3.) THE learned trial Judge framed charges under Sections 8/18 read with Sec­tion 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "the Act") against the appellants and Kaloo Singh. The appellants pleaded not guilty and took the plea of denial simplicitor and false implication in their defence. No evidence in defence was, how­ever, produced by them. By his judgment and order dated October 15,1994, which is under appeal, the learned trial Judge ac­quitted the appellants and Kaloo Singh of the charge under Sections 8/18 read with Section 29 of the Act. He further acquitted Kaloo Singh of the substantive charges under Section 8/18 of the Act. He, how­ever, held the present appellants guilty of the substantive offence under Section 8/18 of the Act, convicted both of them there­under and sentenced each of them to rigorous imprisonment for ten years and fine of Rs. 1,00,000 each or in case of default in payment of fine to undergo fur­ther R.I. for two years each.