GOPAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These two appeals have been filed in respect of the judgment dated 7-8-1999 delivered by the Special Judge, N.D.P.S. cases, Pratapgarh, Appeal No. 497/99 has been filed by the convict Gopal and Appeal No. 759/2000 has been filed by the Central Bureau of Narcotics, feeling aggrieved by the acquittal of Badar alias Bahadur. #

(2.) The prosecution story, in brief, is that a bus bearing No. CIF-238 was stopped by the officers of the Narcotics Department near village Mokhampura. The accused-appellant-Gopal was travelling on Seat No. 32 and his brother Badar alias Bahadur was sitting near by on Seat No. 33. Gopal was allegedly carrying a bag, which was placed in his lap and upon search two small bags containing opium were found in the Bag. One bag contained opium weighing 2.500 kg. and the other contained 2.200 kg. opium. Samples weighing 24 gms. each were separated and sealed and both the accused persons were arrested. Subsequently, the investigation was handover to P.W. 8 Chandra Prakash Morya who recorded the statement Ex. P/16 of Gopal and Ex. P/17 of Badar. Allegedly they stated that they had conspired to transport the said opium and consequently, complaint was filed against both of them. Gopal was charged under Ss. 8/18 and 8/22 of the N.D.P.S. Act. Badar alias Bahadur was charged under Ss. 8/18 r.w. S. 29 of the said Act. Both pleaded not guilty. Eight witnesses were examined by the prosecution in support of its story. The accused persons took the defence that although they were travelling in the Bus but they were not carrying any material and the case was foisted upon them. D.W. 1 Gopal and D.W. 2 Ramlal were examined as defence witnesses, who stated that they were also travelling in the said bus, which was stopped by the Narcotics people. According to them the two accused persons and 2-3 more were made to alight from the bus and thereafter the accused persons were taken in the Jeep although nothing was recovered from them. The learned trial Judge thereafter heard the arguments and delivered the judgment against which the two apepals have been filed. The accused Badar alias Bahadur was acquitted of both the charges. The appellant-Gopal was acquitted of the charge under Ss. 8/22 but was found guilty for the offence under Ss. 8/18 of the N.D.P.S. Act and was awarded a sentence of ten years rigorous imprisonment and a fine of Rs. 1,00,000.00. For non-payment of fine, he has been ordered to further undergo rigorous imprisonment for one year. #

(3.) I have heard the learned counsel for the parties and have perused the record of the case. It is contended on behalf of the accused persons that no recovery was effected from them and they have been implicated on account of suspicion. The learned counsel has argued that according to the prosecution story the appellant-Gopal was carrying the bag containing the contraband and till the recovery was made, he continued to keep it in his lap. According to the learned counsel this is highly unusual and unbelievable because a criminal smuggling the contraband normally does not keep the material near him and it is highly improbable that even after the bus was stopped for search by the Narcotics people, who admittedly were dressed officially, the appellant would not try to get rid of the bag and would continue to keep the same in his lap just to facilitate the work of the Narcotics people. The learned counsel has argued that actually the recovery must have been made from the bus but the story that the bag was found in the lap of the appellant is a concoction. It is further argued that there has been no compliance of Ss. 50, 55 and 57 of the Act. I have been taken through the evidence in detail and various inconsistencies in the testimony of the witnesses have been highlighted. The learned counsel for the Narcotics department has supported the trial Court's judgment in respect of Gopal but the acquittal of Badar alias Bahadur has been challenged and according to the learned counsel it was a fit case to find both the accused guilty. #