BALA KRISHNA NARAYANA, J. - (1.) THE appellant, Abrar Ahmad who has been convicted for offences under Section 21 read with Section 29 of N. D. P. S. Act and sentenced to undergo rigorous imprisonment of 12 years with a fine of Rs. 1,00,000/- (One lac) and in default of payment of fine further three years' rigorous imprisonment by the judgement and order dated 27.5.2007 passed by the Additional District and Sessions Judge, Court No. 14, Varanasi is seeking enlargement on bail during the pendency of the appeal. The prayer for bail made by the appellants Ayub and Abdul Mahbood in the connected Criminal Appeal Nos. 4115 and 4116 of 2006 which arise out of the same judgement as the present appeal is also being considered simultaneously.
(2.) HEARD Sri D. S. Misra and Sri A. P. Misra, learned counsel for the appellant and Sri I. P. Singh and Sanjay Kumar Singh for the Central Bureau of Narcotics and the Union of India and perused the impugned judgement as well as the record of the Criminal Case No. 162 of 1996. Eschewing the necessary details the facts necessary for consideration of the prayer for bail are catapulted hereinbelow: From the perusal of the record it transpires that on 29.12.1995 the truck bearing the registration number U. P. 78-B-7554 (hereinafter referred to as 'the truck' in question) was intercepted and checked by the members of the Central Bureau of Narcotics on 29.12.1995 at about 8.00 P. M. on prior information that the truck in question was transporting illicit contraband substance. Out of four persons who were travelling in the truck in question, three persons made their escape good in the cover of darkness. The three persons who had escaped from the truck were recognized in the torch light by the members of the Central Bureau of Narcotics as Hafiz Afzal, Taiiab and Aqueel alias Manne alias Mannu. The only person who could not escape and who was caught upon being enquired disclosed his name as Abrar Ahmad, the appellant. Upon further interrogation he divulged the names of the driver of the truck and two other persons who had escaped from the Truck as Aqueel alias Manne, Hafiz Afzal and Taiiab. The appellant, Abrar Ahmad was given the option of being searched in the presence of a Gazetted officer or a Magistrate, which he declined and requested that he be searched by members of Central Bureau of Narcotics. The personal search of the appellant did not yield any recovery. For the purpose of searching the truck two independent witnesses were called upon. A thorough search of the truck in question lead to recovery of three cartons containing eleven packets and two cartons containing eleven packets each on which Krishi Vibhag Beej Prakshep Anna Vibhag, Uttar Pradesh was inscribed. A small quantity of substance was drawn from each of packets and upon being tested by the testing kit, the substance was found to be Heroin. The five cartons containing fifty three packets each weighing about one kg. were separately marked as A, B, C, D and E and the packets contained therein were marked according to the numbers of packets which they contained as A-1 to A-11, B-1 to B-11, C-1 to C-10, D-1 to D-11 and E-1 to E-10. The gross weight of the recovered Heroin upon being measured by a weighing scale was found to be 53 kg. The Heroin contained in different packets of each carton was mixed by opening the packets. Two samples of five gms. each were taken from mixture and sealed and kept in a tin box which was wrapped in a white cloth which was also sealed. Thereafter the recovery memo was prepared. The remaining contraband substance was restored back in the packets and kept in the cartons and each of the cartons was wrapped by a white paper and sealed. Signatures of accused, witnesses and the officers were obtained on all the sealed articles. The recovery memo of the recovered Heroin prepared and read out to the witnesses, accused and the officers. Thereafter they put their signatures thereon also. A copy of the recovery memo was given to the appellant, Abrar Ahmad and the Superintendent of Central Bureau of Narcotics, Madan Lal Mina prepared the specimen seal on the spot. He also prepared a separate seizure memo of the truck and other articles and Abrar Ahmad had put his signature thereon. After completion of the seizure proceedings, the statement of the appellant, Abrar Ahmad was recorded by Madan Lal Meena Superintendent, Central Bureau of Narcotics on 30.12.1995 which is on record as Ext. 4. In his statement the appellant, Abrar Ahmad is alleged to have admitted the recovery of illicit Heroin from the truck and also admitted the presence of other three suspects on the spot. The appellant, Abrar Ahmad was produced before the remand Magistrate, Vth Additional Chief Judicial Magistrate, Varanasi on 31.12.1995 for remand and was sent for jail. The recovered articles were handed over to the custody of Sri Gupteshwar Singh of Central Bureau of Narcotics, Varanasi.
(3.) FIVE of the ten samples taken from twenty recovered Heroin substance were sent for chemical analysis on 1.1.1996 along with a letter to the Government Heroin Factory Neemach, Madhya Pradesh. A detailed report of seizure and arrest prepared under Section 57 of the Act was forwarded to the Deputy Narcotics Commissioner, Central Bureau of Narcotics, Lucknow Camp Ghazipur on 30.12.1995. The report of chemical analyst dated 19.1.1996 indicated the presence of dicital morphine in the samples. By an order dated 3.1.1996 the complainant, Ram Avtar, Assistant Narcotics Commissioner, Central Narcotics Bureau, Lucknow was appointed as Investigating Officer who after completing the investigation filed a complaint before the VIIth Additional Sessions Judge, Varanasi against fifteen persons on 27.3.1996. The said complaint was registered as Criminal Case No. 162 of 1995. Only five accused namely, Abrar Ahmad, Abdul Mabood, Ayub, Altaf and Kuddus were tried in Criminal Case No. 162 of 1995 for the offences with which they were charged and the trial of the other accused persons was separated for various reasons. The statement of Abrar Ahmad recorded on 30.12.1996 was made the basis of the complaint whereafter the appellant, Abrar Ahmad was formally arrested on 31.12.1999 and informed of the charges. In compliance of the order dated 4.1.1996 passed by the Incharge, Sessions Judge, Varanasi the appellant, Abrar Ahmad was kept in departmental custody and on 7.1.1996 his second statement was recorded by Investigating Officer, R. A. Rai which is on record as Ext. Ka-22 in which he reiterated the facts which he had stated in his statement recorded on 30.12.1995 and disclosed the names of the accused who had managed to escape from the spot as Hafiz Afzal, Taiiyab and driver Aqueel alias Manne alias Mannu. In his statement Abrar Ahmad further stated that he was the Khalasi of the truck in question which had been pressed into service for transporting 53 kgs. of Heroin to Calcutta. The appellant in his statement also elicited that Kuddus, Fahim, Moin Uddin, Javed, Hazi Anwar, Hafiz Afzal, Tayyab Zuber, Aqueel and Nazeem were actively involved in illegal trafficking of narcotics drugs which is completely prohibited and is an offence under the Act. Record further shows that the statement of co-accused Mohd. Maboob was recorded on 9.1.1996 in which he admitted is complicity as participant in illegal trafficking of prohibited narcotic drugs and also admitted the involvement of Hafiz Afzal, Tayyab, Kuddus and Zuber, Moinuddin, Zaved, Hazi Anwar, Fahim and Zumai in the said illicit business of illegal drug trafficking. Abdul Mabood's statement under Section 67 of the N. D. P. S. Act in which he admitted his involvement in the illicit drug trafficking with other co-accused was recorded on 9.1.1996 is on record as Ext. Ka-23;