- (1.) ALLAH Raham, J. The above-noted two appeals are connected matters, hence they have been taken up together and are being disposed of by a common judgment.
(2.) THESE two appeals arise out of a common judgment and order dated 27. 1. 2004, passed by Special Judge, N. D. P. S. Act/additional Sessions Judge, Lucknow in Criminal Case No. 324 of 1997, whereby accused-appellants Zulfiqar Khan, Prahlad Singh and Badri Lal were found guilty under sections 8, 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as the Act. Accused Zulfiqar Khan was awarded 14 years R. I. and a fine of Rs. 1. 5 lacs under the aforesaid sections. In default of payment of fine, imprisonment of three and a half years was awarded. Accused Prahlad Singh and Badri Lal were sentenced to ten years R. I. and a fine of Rs. one lac each under sections 8, 21 and 29 of the Act. In default of payment of fine, two years' imprisonment was awarded. The prosecution story, as it appears from the record, is that the officers of Central Narcotics Bureau, Lucknow had recovered 53 kgs. heroin from Truck No. UP-78/b7554 in Varanasi on 29. 12. 1995. One accused was arrested on the spot while nine accused had absconded. Complaint No. 162/96 was filed in a competent Court. One of the absconding accused, namely, Abdul Quddus was arrested on 4. 4. 1997 and 500 gms. of heroin was recovered from his possession. On interrogation said Abdul Quddus volunteered to get traffickers of heroin and morphine arrested. The department of Narcotic Bureau provided Abdul Quddus with a telephone connection so that he could communicate with the drug traffickers. Abdul Quddus dialed telephone No. 07915-20066 and talked to someone on the other end. Then Abdul Quddus informed that on 15. 4. 1997 Nazeem Khan and Zulfiqar Khan (accused) would travel to Lucknow by Avadh Express train. Crude morphine would be brought by road by the associates of Nazeem Khan and Zulfiqar Khan and the same would be delivered at House No. A-1180, Indira Nagar, Lucknow, where Abdul Quddus was staying. This information was recorded and a preventive party was formed on 15. 4. 1997. Surveillance of Railway Station Charbagh, House No. A-1180 Indira Nagar, Lucknow and the possible places of stay of aforesaid persons was started from the morning itself. The Incharge of the team Sri L. K. Mangal, Inspector and his associates reached the Platform No. 2 of Charbagh Railway Station (N. E. R.) and started surveillance. Both Nazeem Khan and Zulfiqar Khan got down from three-tier boggy of Avadh Express on 15. 4. 1997 at about 7-30 a. m. They were identified by Sri L. K. Mangal and Sri D. P. Srivastava. These two Inspectors got Nazeem Khan and Zulfiqar Khan identified by the other members of the preventive team. Thereafter Sri L. K. Mangal proceeded to House No. A-1180 Indira Nagar, Lucknow for surveillance over the said house. From the Railway Station, both Nazeem Khan and Zulfiqar Khan proceeded to Deep Avadh Hotel and stayed in Room No. 217. There also Nazeem Khan and Zulfiqar Khan were under surveillance. A fair complexioned boy of about 25 years met Nazeem Khan and Zulfiqar Khan in Room No. 217. They vacated the said room of Hotel Deep Avadh at 11-45 a. m. and proceeded to Charbagh Bus-stand alongwith the said boy. They boarded a bus at Charbagh Bus-station and proceeded towards Kanpur. They got down from ithe bus near Shukla-ganj, where a light brown colour Commander Jeep without number-plate was parked by the road-side. Nazeem Khan and Zulfiqar Khan started repairing the jeep, wherein two persons were sitting, but the jeep could not be repaired and evening descended. All the four persons slept in the jeep. The members of the preventive team led by Sri V. R. Chatterjee kept surveillance over the jeep and the four persons who had slept in the jeep. On 16. 4. 1997, Nazeem Khan, Zulfiqar Khan and their two companions started for Lucknow at 9 a. m. by the aforesaid jeep. Nazeem Khan was driving the jeep while Zulfiqar Khan was sitting by his side. Their two associates were sitting on the back seat. The members of the preventive team followed this jeep. The jeep driven by Nazeem Khan and occupied by his three associates reached house No. A-1180 Indira Nagar, Lucknow at about 12 O'clock (mid-day ). As planned, Sri D. P. Srivastava and Sri L. K. Mangal were already present inside House No. A-1180 Indira Nagar, Lucknow and had closed the door from inside. The rest of the members of the preventive team were having surveillance over the said house from nearby places. This team was led by Sri R. N. Yadav, Superintendent. Nazeem Khan and Zulfiqar Khan got down from the Commander Jeep and knocked at the door of House No. A-1180, Indira Nagar, Lucknow. Inspector Sri L. K. Mangal opened the door, whereupon Nazeem Khan and Zulfiqar Khan asked him as to where was Abdul Quddus. Meanwhile the members of the preventive team including Sri L. K. Mangal and Sri D. P. Srivastava surrounded Nazeem Khan and Zulfiqar Khan and the Commander Jeep on which their two associates were sitting. Inspector Sri L. K. Mangal called two independent witnesses Ram Asrey and Santosh and requested them to be the witnesses of recovery. The members of the preventive team introduced themselves to Nazeem Khan, Zulfiqar Khan and their two associates, who disclosed their names and addresses. The two associates were Prahlad Singh and Badn Lal. Sri L. K. Mangal, Inspector told Nazeem Khan and Zulfiqar Khan that they are suspected of possession of contraband. They were informed of the right to be searched in presence of a gazetted officer or a nearest Magistrate as provided under section 50 of the Act. Nazeem Khan and Zulfiqar Ali said that the members of the preventive team could take the search. The members of the preventive team including Sri R. N. Yadav, Superintendent, Central Narcotic Bureau Lucknow, the two independent witnesses and Nazeem Khan, Zulfiqar Khan, Badri Lal and Prahlad took mutual searches and satisfied themselves that no one had contraband in his possession. Nazeem Khan and Zulfiqar Khan disclosed before the members of the preventive team and the witnesses that crude morphine was kept concealed in the stepney of the Commander Jeep. They also offered to take the crude morphine out of the stepney. Zulfiqar Klian and Badri Lal loosened the stepney and Nazeem Khan removed the tyre of the stepney and took out the tube. He cut down the tube with the scissors and took out four packets of crude morphine. The packets were opened which contained brown colour crude morphine kept in a polythene bag. The contraband was tested on the spot and it was found that it was crude morphine. It was also weighed on the spot and its weight was found 4 kgs (four packets of one kg. each ). Two samples of 5 gms each were taken out from each packet. The remaining crude morphine was kept in white colour Markin and sealed in packets. These packets were marked as A, B, C and D and the samples were marked as A-1, A-2, B-1, B-2, C-1, C-2 and D-l, D-2. Zulfiqar Khan, Nazeem Khan, Badri Lal and Prahlad Singh were taken into custody. At that time, their personal search was also taken. Commander Jeep, whose number was disclosed as MP-14, G-8472 by Badri Lal was also taken into custody under section 8/25 of the Act. Stepney and tube were sealed in separate gunny bags. House No. A-1180 Indira Na-gar was also sealed by the preventive team. Recovery memo and connected documents were prepared on the spot and signed by the independent witnesses, Sri R. N. Yadav, Superintendent, members of the preventive team and the four accused persons. Copy of recovery memo was given to the accused persons on the spot, who had signed the same in token of its receipt. On 17. 4. 1997, report under section 57 of the Act was prepared by Sri L. K. Mangal. Nazeem Khan, Zulfiqar Khan, Badri Lal and Prahlad Singh were sent to Court alongwith relevant papers and recovered contraband. Samples of recovered crude morphine were sent by the Court for chemical analysis. The investigation was entrusted to Ms. Priya Parkar, Inspector of Central Narcotics Department. She recorded the statements of the four accused persons. On completion of investigation, a complaint Ext. Ka 23 was filed in Court. Cognizance was taken and the four accused persons were put on trial.
(3.) ACCUSED Nazeem Khan pleaded not guilty to a charge under section 8/21 of the Act. ACCUSED Badri Lal also pleaded not guilty to a charge under section 8/21/25 of the Act while accused Zulfiqar Khan and Prahlad Singh Lal pleaded not guilty to a charge under section 8/21/29 of the Act. Accused Badri Lal stated that nothing was recovered from Commander Jeep. He has stated that he had come to Lucknow as a tourist. At about 8 a. m. Inspector Sri L. K. Mangal and his companions arrested him at Charbagh Railway Station. He had a bag, which contained no contraband item. His name and address was written on the bag. Due to this reason, he was falsely implicated in this case.;