- (1.) LIOR Avi Ben Moyal, an Israeli national, Narinder Gupta, an Indian national and Jiri Andreev, a Czech Republic national, have filed separate criminal appeals i.e. CRA No. D -1051 -DB of 2011, CRA No. D - 1057 -DB of 2011 and CRA No. D -20 -DB of 2012 respectively, challenging the judgment and order dated 29/30.7.2011, passed by Special Judge, Chandigarh, whereby they have been convicted under Section 20(b) (ii)(C) Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'the NDPS Act') and sentenced to undergo rigorous imprisonment for 16 years and fine of Rs. 2,00,000/ - each, in default thereof, to undergo further rigorous imprisonment for one year each. They have also been convicted under Section 29 of the NDPS Act and sentenced to undergo rigorous imprisonment for 16 years and to pay fine of Rs. 2,00,000/ - each, in default thereof, to undergo further rigorous imprisonment for one year each, for allegedly keeping in their conscious possession 154.5 kilograms Charas. Both the sentences have been ordered to run concurrently. Facts of the case
(2.) THE prosecution case is that on 14.1.2005, a secret information was received from NCB Headquarters, New Delhi to NCB, Zonal Unit at Chandigarh. On the basis of said information, a team of NCB carried out intensive surveillance. It came out that Lior Avi Ben Moyal, an Israeli national, Jiri Andreev, a Czech national and Narender Gupta, resident of Kullu (India) have conspired to smuggle out a huge consignment of charas to some foreign destination by concealing it in some furniture. On 9.2.2005, at about 1:00 PM, another secret information was received by Ravi Kant Pawar, Intelligence Officer, NCB, that the above said persons had recently received a huge consignment of charas, which is suspected to be hidden somewhere in Plot No. 653, Industrial Area, Phase -I, Chandigarh, and that all the said persons have been spotted there with their bag and baggage. The immediate search of said premises was considered necessary as there was possibility that accused will remove the contraband from the said plot and escape. Abovesaid secret information was reduced into writing (Ex.PW6/A) by Ravi Kant Pawar and then it was laid before Superintendent of NCB, Chandigarh (Shri O.P. Sharma), who issued search authorisation (Ex.PE) and directed Ravi Kant Pawar, Intelligence Officer to constitute a team to search Plot No. 653, Industrial Area, Phase I, Chandigarh. A team comprising Ravi Kant Pawar, Intelligence Officer, P.K. Sharma and Balwinder Kumar, both Intelligence Officers, Ravinder Singh, OTC, Gurdev Singh, Driver and Rajesh Kumar, Sepoy, was constituted, whereas O.P. Sharma, Superintendent (Gazetted Officer) also accompanied the team as Supervisory Officer. The abovesaid team proceeded to Industrial Plot No. 653 at about 1:30 PM on 9.2.2005 and on reaching there at about 2:00 PM, they detected some persons manufacturing furniture in the booths constructed in front portion of said industrial plot. Investigating Officer Ravi Kant Pawar after giving his introduction to said persons associated two furniture makers, namely, Deepak Chand son of Ram Narayan, resident of village Devaria, District Aazamgarh (UP) and Ram Narayan son of Minnu Ram, resident of village Devaria, District Aazamgarh (UP) as witnesses. They were informed that NCB had information that two foreign nationals and one Indian national are present in the said industrial plot and that they are involved in drug trafficking and for the said purpose, search has to be carried out. Requisite notices under Sections 42 and 43 of the Act (Ex.PW -6/C and Ex.PW -6/D) were served upon witnesses, namely, Deepak Chand and Ram Narayan respectively who gave their respective consents, vide endorsements Ex.PW6/E and Ex.PW6/F to join as witnesses to the said search. In the meantime, Ajit Singh son of Mohinder Singh, owner of said industrial plot,who was incidentally present in his office in the said plot, was also joined in the investigation. He was apprised by the NCB team about the purpose of visit to the said plot and thereafter, he (Ajit Singh) disclosed to the NCB team that he had leased out hall measuring 930 Sq. ft. to Ben Moyal Aharon, a foreign national w.e.f. 1.1.2005 to 31.12.2006 and that his son Lior Avi Ben Moyal is present in the said hall with his foreigner and Indian friends. Notice under Section 42 of the Act (Ex.DA) was served upon said Ajit Singh requiring him to join as a witness for the search. Ajit Singh gave his consent (Ex.PW8/A) to join the said proceedings.
(3.) THEREAFTER , NCB team alongwith abovesaid witnesses searched the abovesaid hall, which was lying divided into two portions. In the front half portion, sofas were kept whereas second half was further divided by plywood partition having separate sliding doors. In the first room, twelve big wooden boxes were found whereas adjoining room was found bolted from inside. On knocking, door was opened wherein three persons were found. Ravi Kant Pawar, Investigating Officer disclosed his identity as well as of his team members to said three persons and also the purpose of their visit. Said persons disclosed their names as Lior Avi Ben Moyal, Jiri Andreev and Narender Gupta. Search authorisation was also produced before said persons and they alongwith witnesses appended their signatures on the said document. Prior to effecting search, Ravi Kant Pawar, Investigating Officer also offered for the search of his person and his team members but the same was declined by the abovesaid persons. It was also informed to the abovesaid persons that O.P. Sharma, Superintendent, NCB accompanying the team is a Gazetted Officer. Thereafter, Investigating Officer started the search operation. On search of the room, on two wooden tables, eighty four wooden boxes of (39 x 16 x 5) cms. dimensions and ten similar packets packed with carbon paper and cellophane polythene were kept and it was disclosed by abovesaid persons that the said packets containing charas were procured by Narender Gupta for Lior Avi Ben Moyal from one Tara Chand of Kullu. It was also disclosed by the said persons that Jiri Andreev, an associate of Lior Avi Ben Moyal had come to help Lior Avi Ben in packing the transportation of consignment of charas. It was also disclosed by the abovesaid three persons that box like light weight imported cavities packed with charas were to be concealed in the sofa sets kept in the hall and the same were to be exported to Holland. All the 94 boxes were divided into lots at random, out of which eight lots of 10 boxes each were marked as Lot -A to Lot -H, one lot of 4 boxes as Lot -I and one lot of 10 boxes which were separately packed with carbon and cellophane polythene, as Lot -J. All the ten boxes of Lot -A were opened, each was found to contain finger, rectangular and tikki shape dark brown coloured substance packed with thin polythene having characteristic smell of charas. Balwinder Kumar, Intelligence Officer, took a small portion of substance from each box and made a homogeneous mixture and then homogeneous mixture was tested with the help of drug detection kit and the said test resulted positive for charas. Charas in all the lots was weighed and its weight was found to be 154.50 kilograms. From each and every lot, two representative samples of 25 grams each were taken and the same were packed in polythene pouches and were heat sealed and then placed in separate envelopes. On the opening side of every envelope, a white paper slip was pasted. Residue was re -packed in their respective boxes and lots and all the lots were then kept in separate markene cloth bags and sewed properly and each lot was marked as Lot -A to Lot -J. All the samples were also marked as A -1 to J -2. Packing material of this contraband i.e. cellophane sheets and carbon etc. were put into separate polythene bag and the same was heat sealed and then put into white markene cloth and sewed it was marked as Lot -K. Investigating Officer took seal bearing inscriptions NARCOTICS CONTROL BUREAU -06 from O.P. Sharma, Superintendent, NCB and affixed on three places on all lots from Lot -A to Lot -K and 20 samples packets were sealed with the said seal at four places. From the said room, some other articles like two rolls packing polythene, one electric drill machine, one cutter, one hand saw, three boxes and a polythene full of nails, one electronic weighing machine, one container of used adhesive (fevicol) and five packets of big carbon paper etc. were also recovered which were packed in a carton and sealed with the seal bearing inscriptions NARCOTICS CONTROL BUREAU -06 at three places. This packet was marked as Lot -L. All the packets were signed by O.P. Sharma, Superintendent, Ravi Kant Pawar, Investigating Officer, P.K. Sharma, Balwinder Kumar, Intelligence Officers of NCB and by all the three accused persons as well as witnesses, namely, Ram Narayan, Deepak Chand and Ajit Singh in the presence of each other. After search of inner room, another room where 12 wooden boxes were kept was also searched. 4. On all these boxes, paper slip of AIR FRANCE, N'DELTA/AW 2852 1275, 12 Coils and name of consignee -Narender Gupta, Survey Bazar, District Kullu, Telephone No. 00919818717394 was pasted. All the 12 boxes contained different type of fittings and empty wooden boxes and specially designed frames/structures. There were some other fittings kept in the room that were crafted at Chandigarh by the carpenter. All the 30 sofas i.e. 14 big and 16 small were searched thoroughly and nothing incriminating or objectionable was recovered from the said sofas. Panchnama (Ex.PG) and recovery -cum -seizure memo (Ex.PF) were prepared on the spot and the same were signed by O.P. Sharma, Superintendent, Ravi Kant Pawar, Investigating Officer, P.K. Sharma and Balwinder Kumar, Intelligence Officers of NCB and all the three accused persons as well as abovesaid witnesses. Test memos were filled in triplicate and sealed with the seal bearing inscriptions NARCOTIC CONTROL BUREAU -06 on each test memo. Test memo Ex.PW -5/C was later on sent to CRCL Delhi and third one Ex.PW -8/G was kept in the office. Seal after its use was handed over to O.P. Sharma, Superintendent. Notices under Section 67 of the Act Ex.PH, Ex.PI and Ex.PJ were served upon accused Lior Avi Ben Moyal, Jiri Andreev and Narender Gupta respectively, who after appending their respective signatures on the said notices, had given their respective voluntary statements Ex.PH/1, Ex.PI/1 and Ex.PJ/1, which bear their signatures besides the signatures of witnesses as well as of Investigating Officer Ravi Kant Pawar. Notices under Section 67 of the Act Ex.PW -8/A, Ex.PW -8/B and Ex.PW -8/E were given to witnesses Ram Narayan, Deepak Chand and Ajit Singh respectively and they appended their signatures in token of receipt of the same and thereafter, their statements Ex.PW -8/D, Ex.PW -8/E and Ex.PW - 8/F were recorded, which were duly signed by them as well as Ravi Kant Pawar, Investigating Officer.;