CRIMINAL APPEAL No. 189 OF 2006 (Against the Judgment of conviction and sentence dated 13.02.2006/ 15.02.2006 of the 4th Addl. Sessions Judge, Muzaffarpur in Trial No.52 of 2005) HAKIM MIAN---------------------------------------------------(Appellant) Versus THE UNION OF INDIA-----------------------------------------(Respondents) P R E S E N T THE HON'BLE MR. JUSTICE C.M.PRASAD For the Appellant : Mr. Arun Kumar Tripathy, Advocate. (Amicus Curiae) For the Union of India: Mr. Binay Kumar Pandey, C.G.C. ------------ C.M. Prasad, J. This appeal is against the judgment of conviction and sentence dated 13.02.2006/ 15.02.2006 of the 4th Addl. Sessions Judge, Muzaffarpur passed in Trial No. 52 of 2005, whereby the appellant has been convicted under Section 20(b)(ii)(C) of the N.D.P.S. Act (hereinafter referred to as the ‘Act’) and has been sentenced to undergo R.I. for ten years and to pay a fine of one lac and in default of payment of fine to undergo R.I. for two and half years. 2. The prosecution case as stated in the complaint filed by the complainant Ram Kumar Pandey, Inspector, Customs Division, Muzaffarpur is that on 15.06.2003 on receipt of confidential information that a Tractor with Trailor having cavity in the trailor was carrying Ganja from Raxaul side to 2 Hajipur. The preventive team of Officers was formed and the team rushed towards Motipur as the informer was informed that the tractor had crossed Chakiya at about 8.00 a.m. and the team ambushed near Motipur College at NH-28 where at about 10.12 a.m. a similar tractor was seen approaching. The team gave signal to the tractor bearing registration No.BRF-8663 to stop. The tractor and its trailor stopped. It appeared that there was a cavity in the trailer. In the meantime, one motorcycle having two riders arrived there. The motorcycle was stopped. The riders were requested to be Punch in the search of the tractor and trailer. They agree to be punches. The team was deliberating to commence the search and they were searching tool for opening the cavity. At that time the driver of the tractor stated that if the search operation was carried on at that place there was a risk of his life as well as goods inside the cavity. Realizing the gravity of the situation and also finding that they had no tool to open the cavity the tractor and trailer was brought to the Customs Office, Muzaffarpur. The two punches were requested and they also agreed and came to the office with the tractor and trailor. At the office it was found that the cavity was closed, therefore, the cavity in the trailor was opened by cutting the sheet with a 3 chisel. On opening the cavity of the trailor 16 packets were found. On opening of the packets it was found that each of the packets contained 6 Kgs. of Ganja and thus total quantity of 96 Kgs of Ganja was recovered from the cavity in presence of the Punches and a seizure memo (Ext-1) was prepared which was also witnessed by the Punches. The two punches Lavkesh Kumar and Rakesh Kumar (P.W.10) respectively put their L.T.I. and signature on the seizure list. A punchnama (Ext-1/1) was also prepared under the signature of the complainant. The Punchnama contained the statement of the punches regarding the recovery of the Ganja under their L.T.I. and signatures. It also contains the L.T.I. of the appellant, who was apprehended as driver of the tractor. Thereafter, statement of the appellant was also recorded by the complainant. The appellant admitted in his statement that he was carrying the Ganja from Raxaul to Hazipur and he also stated that he was carrying Ganja to Hajipur on being asked by Sri Jitan and Sri Nandan of Raxaul. He also stated that Sri Jitan was the owner of the Ganja and that he was carrying the Ganja on payment of money. Besides this the interrogatory statement under Section 67 of the Act (Ext-1/iii) was also recorded, wherein the 4 appellant disclosed several circumstances regarding the carrying of the Ganja. 3. Sample was taken from the seized Ganja in presence of the witnesses. Thereafter, the sample was sent to the Government Opium and Alkaloid Works, Gajipur (U.P.) which in it’s examination report (Ext-2) reported that on examination the sample was found to be Ganja. 4. As many as ten witnesses were examined by the prosecution. P.W.1 R.K. Pandey, Customs Inspector is the complainant who, along with the team had intercepted the tractor and trailor and had made the recovery and seizure and recorded the statement of the appellant and after investigating the case and after receipt of the chemical examination report (Ext-2) filed the complaint. P.W.2 Amar singh was a Hawaldar and P.W.3 Randhir Kumar, P.W.4 Ram Badan Ray, P.W.5 Suresh Prasad Sah, P.W.6 Kanhaiya Singh, P.W.7 Rakesh Kumar Singh, P.W.8 Madhesh Kumar, P.W.9 Syed Bunyad Hussain are the Sepoys of the Customs Department, who comprised the preventive team which had intercepted the tractor and trailor and had made the recovery. P.W.10 Rakesh Kumar is the eyewitness in whose presence the recovery of Ganja was made. 5 5. The complainant P.W.1 deposed that on 15.06.2003 he was posted as Inspector in Customs Devision, Muzaffarpur, he received secret information that a Tractor and Trailor with concealed cavity containing Ganja was passing. On this information he constituted a preventive team of staff and proceeded on official vehicle and ambushed near Motipur College. There at about 10.15 a.m. one tractor bearing registration No. BRF-8663 was stopped. On seeing a cavity in the trailor was located. The tractor was occupied by a person who disclosed his name as Hakim Mian, the appellant. At that time a motorcycle which was passing in the road was stopped for witnessing of the search by the motorcyclists. The team tried to open the cavity but it could not be opened there. Therefore, the tractor and trailor along with the witnesses were brought to the Customs Office and there the cavity was opened, as a result of which 16 packets each containing 6 Kgs of Ganja and thus total 96 Kgs of Ganja was recovered from the cavity. The trailor of the Ganja was seized and seizure list in presence of witnesses Lokesh Kumar and Rakesh Kumar was prepared. The carbon copy of the seizure list was proved as Ext-1. 6. The complainant further deposed that he 6 also prepared Punchnama containing the statement of the two punches in whose presence the search and seizure was made. The carbon copy of the Punchnama was marked as Ext-1/1. The complainant also stated that the voluntary statement of the appellant was recorded by Amar Nath and he had also put his signature on it. The carbon copy of the voluntary statement was proved as Ext-1/ii. The complainant also stated that in presence of Mr. C.K. Jha, Superintendent of Customs, Muzaffarpur, the interrogatory statement of the appellant was also recorded. The carbon copy of the interrogatory statement was proved as Ext-1/iii. In his cross- examination the complainant has stated that the search and seizure preventive team had been made on the basis of the secret information that tractor and trailor with concealed cavity containing Ganja was going. He further stated that the search and seizure could not be made on the place of occurrence since the cavity could not be opened because there was no tool for opening it. It also stated that the cavity could not be seen from outside. He further stated that after the seizure he had submitted the seizure report (Ext- 1/iv) to his superior officer. He also deposed that the address of Jitan and the address of appellant as 7 disclosed by appellant himself were found to be wrong after verification. The complainant further deposed that he had sent the sample of recovered Ganja for examination and the examination report disclosed that it was Ganja. The complainant identified the appellant in dock during trial. He also stated that cavity from which the Ganja was recovered was closed by welding the sheet and the cavity was opened by cutting it with a chisel. Thus, the complainant fully supported the prosecution case about the seizure and recovery from the tractor and trailor which was being driven by the appellant. Thus, the recovery of 96 Kgs. of Ganja was proved by the evidence of this witness. 7. The P.W.2 Amar Singh, Hawaldar of the Customs Department, who was a member of the preventive team similarly deposed that the tractor and trailor coming from the side of Motipur was intercepted and from the cavity of the trailor 96 Kgs. of Ganja was recovered. He also stated that after recovery seizure list was prepared by Inspector R.K. Pandey in presence of two witnesses. This witness has identified the appellant in dock during trial and he has stated that the appellant was the only person who was driving the tractor trailor from which earlier recovery of Ganja was made. In Cross-examination he has fully 8 supported the case. His testimony was not shaken and he fully corroborates the evidence of the complainant. The P.Ws.3, 4, 5, 6, 7, 8 & 9 are the Sepoys of the customs department, who had comprised the preventive team which intercepted the tractor and trailor and in whose presence search, recovery and seizure of 96 Kgs. of Ganja was made. All these witnesses are consistent in their evidence that the search and seizure of 96 Kgs of Ganja contained in 16 packets was made from the cavity of the tractor in their presence. There is nothing in cross-examination to discredit the testimony on any point. They are the most natural and reliable witnesses and they corroborate the complainant in all the material facts of the case. 8. The P.W.10 Rakesh Kumar is an independent witness in whose presence the search and seizure was made. He deposed that on 15.06.2003 he had come to the customs office and he had seen there 96 Kgs of Ganja had been recovered. He also deposed that he and one Lokesh Kumar had put their L.T.I. and signature on the seizure list. He further deposed that he had put his L.T.I. on the seizure list on being asked by the customs officer. The cross-examination of this witness is very short, 9 containing of two sentences only. There is nothing in his cross-examination to discredit his testimony as a witness on the point of search and seizure. 9. Learned amicus curiae, appearing for the appellant argued that another independent witness Lokesh Kumar has not been examined by the prosecution. Learned Central Government Counsel replied that the other seizure witness could not be found during trial, hence, he has not been examined by the prosecution. No doubt, one seizure witness has not been produced by prosecution but the other one namely, P.W.9 has been examined and he fully corroborates the complaint on the point of seizure. No other material point was argued by the learned Amicus Curiae appearing for the appellant. 10. Thus, considering the facts and circumstances and also the evidence as discussed above, I find that prosecution has been able to prove recovery of 96 Kgs. of Ganja from the possession of the appellant. Ganja in quantity exceeding 20 Kgs. is declared as commercial quantity under the table of the Act. Section 20(b)(ii)(C) provides that in case of the possession of Ganja in commercial quantity the sentence shall not be less than ten years and may extent to 20 years and it will also be of fine which 10 shall not be less than Rs.1,00,000/-. Learned trial- court has passed a sentence of R.I. for ten years and a fine of one lakh, which is the minimum sentence for such offence. Thus, the charges have been well proved by the prosecution. The sentence is also the minimum one. In the circumstance, the judgment of conviction and sentence as passed by the learned trial-court is quite justified. Therefore, the same is upheld. In the result, the appeal is dismissed. Patna High Court, Dated, 24th Sept. 2010, N.A.F.R./Mkr. (C.M. Prasad, J.)