BRIJ BHUSHAN GIRI Vs. STATE OF U P

JUDGEMENT

(1.) BOTH these criminal appeals have arisen out of a judgment dated 21.3.2003 passed in two consolidated Special Case No. 20 of 2002, Rajwanshi Giri @ Manoj Giri arising out of Case Crime No. 104 of 2002, under Sections 8/20(b)(II)(C) N.D.P.S. Act, P.S. -Bargadwa, District -Maharajganj and Special Case No. 21 of 2002, State of U.P. Vs. Brij Bhushan Giri, arising out of Case Crime No. 105 of 2002, under Section 8/20 (b)(II)(C) N.D.P.S. Act (in short 'the Act'), P.S. -Bargadwa, District -Maharajganj by learned Additional Sessions Judge, Maharajganj convicting and sentencing both the appellants for 15 years rigorous imprisonment and a fine of Rs.1 lac each with default sentence.

(2.) THE prosecution version in brief is that on 28.2.2002, police party headed by Inspector B.R. Premi of boarder out -post, were on patrolling duty to check infiltration of smugglers and the activities of ISI on Indo -Nepal Boarder. The police party while going towards 'no man's land' at about 13.15 O'clock,S.O. Rama Shankar Yadav of P.S. -Bargadwa, District -Maharajganj along with the other police personnels met them near government hospital. They all started joint patrolling and when reached near Haldi Tola Kabristan and orchard of one Jugal Kishor Banka of village - Bargadwa, two persons were spotted coming from Nepal side. However, seeing the police party they all of sudden returned back and started running. The police party,however, nabbed them due to suspicion, in presence of one Raghunath Prasad, an independent witness. On interrogation, one of them disclosed his name as Rajwanshi Giri @ Manoj Giri and another as Brij Bhushan Giri, citizen of Nepal. They confessed before the police of having illicit charas with them. Both were allegedly given option as mentioned under Section 50 of the Act as to whether they want to give their search either in presence of a Magistrate or a Gazetted officer but they refused to opt, rather requested the arresting officer to conduct their search himself. On search being made of Rajwanshi Giri @ Manoj Giri, 8 packets of charas were recovered from his person and 6 packets charas were recovered from the person of Brij Bhushan Giri which were weighed on the spot. The illicit charas recovered from the possession of Rajwanshi Giri @ Manoj Giri was found 6 kg and the charas recovered from the person of Brij Bhushan Giri was 5 kg. They could not show any valid licence for carrying such a huge quantity of charas with them. Accordingly, both were arrested. The illicit charas recovered from their person, was seized and seizure memo was prepared on the spot. Samples of 100gms of charas recovered from both the appellants were prepared separately and the remaining charas recovered from both the appellants were separately sealed. Thereafter, they both were taken to the police station and cases under Section 8/20 of the Act were registered against both of them separately. The investigating officer after concluding the investigation submitted charge sheets against both the accused persons separately. Both the accused persons were put on trial and ultimately the trial court found them guilty under Section 8/20(b)(II)(C) of the Act and both were sentence to undergo 15 years of rigorous imprisonment and a fine of Rs. 1 lac each, with a default sentence of further 6 months simple imprisonment. Both were also given the benefit of Section 428 Cr.P.C. and the period which they already undergone during the trial was set off against the term of imprisonment imposed upon them.

(3.) BEING dis -satisfied with the judgment of the trial court, both the appellants filed separate Criminal Appeal No. - 2201 of 2003, Brij Bhushan Giri Vs. State Of U.P. and Criminal Appeal No. 2774 of 2003, Rajwanshi Giri @ Manoj. Giri Vs State Of U.P. Since both the appeals have arisen out of a common judgment mentioned as above and therefore, both these appeals have also been clubbed together.