BALDEV SINGH, J. - (1.) BASHARAT Ali alias Arshad son of Abbas Ali and Saugawat Ali son of Mohd. Hussain, both Pakistan nationals, residents of village Bhainiya Daud, Tehsil and District Narowal (Pakistan) have filed this appeal through Superintendent, Central Jail, Amritsar. They were convicted for the offences punishable under Sections 22 and 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and under Section 3 of the Indian Passport Act, vide impugned judgment dated 5.2.2002 passed by Shri Amarjit Singh Katari, the then Additional Sessions Judge-cum-Judge, Special Court, Amritsar. Each of them was sentenced to undergo RI for a period of 20 years and to pay fine of Rs. 1 lac and in default of payment of fine, to undergo further RI for 3 years under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Each of them was also sentenced to undergo RI for a period of 20 years and to pay fine of Rs. 1 lac and in default of payment of fine, to undergo further RI for 3 years under Section 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Each of them was further sentenced to undergo RI for one year and to pay Rs. 500/- as fine and in default of payment of fine, to undergo further RI for one month under Section 3 of the Indian Passport Act. All the sentences were ordered to run concurrently vide impugned sentence order dated 5.2.2002. The period already spent in custody was ordered to be set off against the substantive sentence.
(2.) MS . Deepika Verma, Advocate was appointed as amicus curiae to argue the appeal on behalf of the appellants. Mr. D.D. Sharma, Advocate represented the Inspector of Customs, Land Customs Station, Attari Rail, Amritsar complainant/respondent. The facts of the prosecution case are that on 27.8.1997, Shri Rajan Chaudhary, Assistant Commissioner, Customs, Amritsar summoned Shri G.M. Sharma, then posted as inspector Customs, Gurmit Singh, Superintendent Customs and Dharmender Kumar Inspector Customs to his office and told them that there was a secret information that some Pakistanis would infiltrate into Indian territory carrying contraband items and that Nakabandhi be made to capture them. Shri Rajan Chaudhary, Assistant Commissioner, Customs, Amritsar further directed that the Nakabandhi be set up. After joining the Counter Intelligence Staff headed by Shri S.K. Sharma, Superintendent of Police. Then Nakabandhi was made on the night of 27.8.1997 at about 11.45 p.m. near a tube-well, about 400 yards away from Ajnala-Ramdas road in the area of village Sammowal. At about 3.30 a.m. (on 28.8.1997), the members of the Nakabandhi party noticed some movement at the Indo-Pak border. Some persons were spotted coming from Pakistan side to Indian territory. When they came nearer, they saw that the infiltrators were three in number and they were carrying something on their heads. They were challenged to stop. At this, they threw down the head loads and ran back towards Pakistan side. The members of the Nakabandhi party chased them. Two of them (both the appellants) were apprehended, while the third infiltrator, whose name was later on known as Ashique Ali succeeded in running away and could not be apprehended. Both the appellants told the members of the Nakabandhi party that they were Pak nationals. Jarnail Singh Sarpanch and Balbir Singh Panch of village Sammowal were summoned at the spot. Both the appellants were interrogated in the presence of PWs Jarnail Singh and Balbir Singh about their names, addresses and professions. Their personal search was also conducted. No incriminating articles were recovered from the personal search of Basharat Ali alias Arshad-appellant. One pistol, six live cartridges and a magazine were recovered from the personal search of Agawam Ali- appellant. Option was sought from the appellants as to whether the bags carried by them were to be searched in the presence of a Magistrate or a gazetted officer. This option was given orally at the spot. Due to darkness at the spot and for reasons of security, the appellants along with the sacks of their head loads were brought to Customs office, Amritsar. Jarnail Singh Sarpanch and Balbir Singh Panch also accompanied the officials of the Customs Department and the Intelligence Department. After reaching the Customs office at Amritsar, consent memo of appellant Basharat Ali Ex. PA and consent memo of Saugawat Ali Ex. PB were prepared. They consented for search before a gazetted officer. Both the appellants thumb marked their consent memo. These were attested by Gurmit Singh, Superintendent Customs. Two of the bags recovered were opened and were found containing 48 packets, each having 1 Kg. of Heroin. The bags bore the mark of Sugar Factory of Pakistan. Recovery memo Ex. PC was signed by G.M. Sharma, Karambir Singh SI, Gurmit Singh Superintendent Customs and were thumb marked by Jarnail Singh and Balbir Singh, independent witnesses. These were also thumb marked by the appellants. All the 48 packets were opened. Their substance was tested with the help of Drug Testing Kit, available with the Customs officials. They all tested positive for Heroin. 48 packets were converted into 5 lots/blocks i.e. 4 each containing 10 packets and the 5th containing 8 packets. Out of the first lot of 10 packets, 100 gms contents of each of the 10 packets were taken out and the same were mixed and made homogeneous and out of the homogeneous mixture, three samples of 10 gms were taken out. The remaining homogeneous mixture was put in the same packets from which it was taken out. All the three samples and the packets containing the remaining contents were converted into sealed parcels, bearing seal impression No. 144 of the Customs office. In the same manner, sampling and conversion into sealed parcels was done of the remaining 4 lots and total 15 representative samples were taken out. On opening the third bag, opium was recovered in 10 packets; each containing 500 gms approximately. 50 gms of opium was taken out from each of the packets and a homogeneous mixture was prepared and out of it, three samples, each of 15 gms were separated and remaining homogeneous mixture was transferred into the same packets. The samples and the packets were converted into sealed parcels bearing seal impression No. 144 of the Customs Office. A composite weighment sheets was prepared, which was signed by G.M. Sharma, Customs Inspector and other witnesses. The same is Ex. PD. Before sealing the sample parcels, slips bearing the thumb marks of the appellants and signatures of Karambir Singh SI and G.M. Sharma Customs Inspector were affixed thereon. All the parcels were then put into two steel trunks. The steel trunks were sealed after wrapping clothes around them. Similarly, Mouser pistol and cartridges were also sealed into parcels. A Panchnama Ex. PE was prepared. It was signed by G.M. Sharma, Customs Inspector and Karambir Singh SI. It was also thumb marked by Jarnail Singh and Balbir Singh, independent witnesses. Arrest memo Ex. PG and memo of personal search Ex. PH were prepared. The case property was deposited with the Inspector, in-charge Malkhana, Customs office, Amritsar.
(3.) ON 28.8.1997, Basharat Ali made statement, which was recorded by Rajender Singh Inspector. It was made in the presence of G.M. Sharma, Customs Inspector and Shri M.S. Harchand, Superintendent Customs. Saugawat Ali also made statement on 28.8.1997, which was recorded by Rajender Singh, Superintendent and was signed by M.S. Harchand, Superintendent Customs. Both the appellants made statements voluntarily admitting that they had crossed over to Indian territory from Pakistan without valid documents.;