IMPORTANT POINT
Strict compliance with statutory safeguards, including the requirements under Section 42 and the admissibility of confessional statements under Section 67, is essential in NDPS cases.

JUDGMENT :

(Chakradhari Sharan Singh, J.)

The appellants have preferred these appeals under Section 374(2) of the Code of Criminal Procedure against a judgment of conviction dated 17.05.2022 and an order of sentence dated 19.05.2022 passed by the learned Sessions Judge, Muzaffarpur in DRI Case No. 07 of 2018 arising out of NDPS Case No. 42 of 2018, whereby and whereunder, they have been convicted and sentenced as under :-

Anil Yadav appellant in Criminal Appeal (DB) No. 544 of 2022

Conviction under Section Sentence

Imprisonment Fine (Rs.) In default of fine

under Section 20(b)(ii)(C) of the NDPS Act Rigorous imprisonment for 20 years 1 Lakh S.I for one year

Hari Om Giri @ Hari Om Kumar appellant in Criminal Appeal (DB) No. 326 of 2023

Conviction under Section Sentence

Imprisonment Fine (Rs.) In default of fine

under Section 20(b)(ii)(C) of the NDPS Act Rigorous imprisonment for 20 years 1 Lakh S.I for one year

2. An Intelligence Officer, Directorate of Revenue Intelligence, Regional Unit, Muzaffarpur, namely Sanjay Kumar Gupta, filed a complaint on 18.06.2019 in the court of learned Sessions Judge, Muzaffarpur, against these appellants, alleging commission of offences punishable under Sections 20 & 23 of the NDPS Act, 1985 (hereinafter referred to as the ‘Act’ in short) for violation of Section-8(c) of the Act. He asserted in his complaint that acting on a specific intelligence regarding transportation of charas by a truck bearing registration no. WB 23B 3145 from Kathmandu (Nepal) to Patna via Sahebganj, Muzaffarpur, the officials of DRI, Muzaffarpur in the presence of two independent witnesses had intercepted the said truck at about 8:30 pm on 24.12.2018, near Sahebganj, Muzaffarpur. On interrogation the appellants disclosed their identity. The appellant Anil Yadav identified himself to be the driver of the truck and the appellant Hariom Giri @ Hariom Kumar as a cleaner of the said vehicle. Complying with the requirement under section-50(1) of the Act, they were given option to be searched either before a Magistrate or a gazetted officer, whereupon, they agreed to be searched in the presence of a gazetted officer. Initially, they claimed that the truck was empty, however, on interrogation they accepted that there was charas concealed in an specially built cavity inside the truck. The complainant further disclosed that it had become dark and therefore, for security reasons the vehicle was brought to the DRI Office, Muzaffarpur for examination and other necessary formalities with the consent of the appellants and the panchas. At DRI Office, Muzaffarpur, the truck was searched in the presence of the appellants and two witnesses leading to recovery of 6 packets containing substance believed to be charas. The packets were marked as 01 to 06. Further, it was found that the packet nos. 1, 2, 3, 5 & 6 were containing 20 small packets and packet no. 4 was containing 17 small packets. Weighment of each packet of charas was taken separately in the presence of these appellants and two independent witnesses and a detailed weighment list was prepared which was duly signed by these appellants and the independent witnesses. Gross weight of the recovered packets of charas was found to be 119.360 Kg and net weight 109.250 Kg.

3. It is manifest from the complaint itself that the search of the vehicle was not conducted at 5:30 pm where it was intercepted rather the search was conducted after sunset when it had become dark, at the DRI Office, Muzaffarpur. We have noted this aspect of the matter at this juncture to address the issue of compliance of the requirements of Section 42 of the Act.

4. The complainant further asserted that two samples each weighing 25 grams of homogeneous mixture of charas drawn from all the small packets contained in the individual packets were drawn from all the six packets of charas and marked as A-1 & A-2, B-1 & B-2, C-1 & C-2; D-1 & D-2; E-1 & E-2 and F-1 & F-2 respectively, which were kept concealed in a white transpare