BALA KRISHNA NARAYANA,J. - (1.) Present appeal is preferred against the judgment and order dated 14.2.1996 passed by Sri S.K. Ratoori Ist Additional District Judge, Siddharthnagar convicting the sole appellant Munna under Section 20 (B) (2) and Section 23 of Narcotic Drugs and Psychotropic Substance Act (in short N.D.P.S.) Act sentencing him to 15 years' rigorous imprisonment and a fine of Rs. 1,00,000/- and further in default of payment of fine rigorous imprisonment for 2 years.
(2.) This criminal appeal was allowed by another Division Bench of this Court vide judgement and order dated 19.7.2002. The aforesaid judgement and order was challenged by Union of India before the Apex Court in Criminal Appeal No. 956 of 2004; Union of India v. Munna and another (arising out of S.L.P. (Crl) No. 4126 of 2003), which was allowed by the Apex Court vide judgement and order dated 27.8.2004 and the Apex Court (2) remitted the matter back to this Court for fresh adjudication with the following directions: "We find that the High Court has not analysed the evidence in it proper perspective and has acted on surmises and conjectures. It has also acted on irrelevant materials leaving out of consideration relevant matters. The fact that there was admission of the accused before the Custom authorities has not been dealt with by the High Court. Such admission is not hit by either Section 25 or section 26 of Indian Evidence Act, 1872 (in short the 'Evidence Act'). The effect of such admission was a relevant factor. Additionally, the effect of Section 54 which raises presumption from possession has not been considered and on the contrary, burden has been placed on the prosecution and it has been held that prosecution was to establish that the possession was conscious. The effect of the evidence relating to dispatch of information to the superior authorities has also not been considered. In view of the unsatisfactory analysis of evidence and erroneous approach to the statutory prescriptions, we consider it to be a fit case which needs to be adjudicated afresh by the High Court. We remit the matter to the High Court for fresh adjudication in accordance with law taking into account the evidence on record and applicable provisions of the governing (3) statute."
(3.) In brief, the case of the prosecution is that on 17.10.1994 at about 6.30 P.M. Inspector Custom Sri B.K. Srivastava, Incharge Custom Station Khunwa, District Siddharthnagar, received an information that a person carrying Charas from Nepal shall be passing through Kakrahwa check point. Consequently Sri B.K. Singh P.W.1, complainant, summoned two independent witness and took position near the barrier to apprehend the culprit. At about 7.00 P.M. jeep No. 5560 was seen coming from Nepal side and when it reached near the barrier the Custom Officer stopped the Jeep for its checking. Accused appellant who was the sole occupant of the Jeep stopped the vehicle immediately. The Custom Officer in presence of the witnesses told the accused that search of his person and the Jeep is to be taken because there is information that charas is concealed in a cavity in his Jeep. He was also informed that if he so desires he could be taken before a Gazetted Officer for the search. At this the accused said that the Officer may himself search him and there was no necessity to take him before any Gazetted Officer. The Officer along with witnesses on inspection of the Jeep were satisfied that the Jeep contained a cavity. Subsequently, the Jeep along with the accused was brought to the custom office and in the presence of witnesses the cursory search of the Jeep resulted in the discovery of a cavity and in which charas was cleverly concealed, became evident by its smell. The Officer immediately sent Sepoy Sri Saghir Ahmad to Badhni with a request that superintendent custom Badhni may come immediately for the search of seized jeep which had a cavity in which charas was concealed. The Superintendent came from Badhni early in the morning at 7 A.M. next day and in his presence the search of the Jeep was conducted and charas weighing 100 kg., of the value of Rs. 10,00,000/- was recovered from the cavity. Samples were taken out, sealed in separate packets which contained signatures of the accused, witnesses and the officer and the remaining charas was duly sealed. Since recovery of charas was in violation of Section 8 of N.D.P.S. Act and the Jeep containing the charas was also seized.;