Advocates:
['S T HUSSAIN', '', 'SHABIR AHMAD', 'M A QAYOOM', 'NADIYA', 'MASOODA', 'S GOWHAR', '', 'SAJAD A MIR', 'SHUJA UL HAQ']

HIGH COURT OF JAMMU AND KASHMIR

AT SRINAGAR

Reserved on: 08.03.2021

Pronounced on: 04.06.2021

Case: CRA No. 01/2015

c/w Bail App No. 101/2019

Mohammad Maqbool Lone

…Applicant/Appellant(s)

Through: Mr. M. M. Khan, Advocate

v/s

Intelligence Officer Narcotics

…. Respondent(s)

Through: Sh. T. M. Shamsi, ASGI

CORAM:

HON’BLE MR. JUSTICE DHIRAJ SINGH THAKUR

HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

JUDGMENT

Per Oswal-J

1.

The appellant, after having been convicted by court of learned Sessions

Judge Kathua (hereinafter to be referred as trial court) for commission of

offence under section 8(c) of the NDPS Act read with sections

20(b)(ii)(c) of the NDPS Act (for short the Act) and sentenced to

undergo rigorous imprisonment for 20 years and payment of fine of Rs. 2

lacs, has challenged the judgment dated 08.01.2015 (hereinafter to be

referred as the judgment impugned) and order dated 10.01.2015 through

the medium of present appeal on the various grounds legal as well as

factual, as narrated in the memo of appeal.

Case of prosecution:

2.

Briefly stated, the complaint was filed against the appellant for

commission of offences under sections 8, 20 and 60 of the Act in which

it was stated that the secret information was received from the source

that Drug Trafficking from Kashmir Valley to Delhi in Truck No. JK05-

6906 dated 13.03.2013 is going on and the supply of drug may be in

Transport Nagar, Delhi. The above said information was given in writing

by Shri Maneet Kumar, Intelligence Officer (IO) to the Superintendent

NCB Jammu i.e., Ms. Mehak Jain, who constituted the team under her

supervision and Naka was laid on 13.03.2013 at night along with police

on Lakhanpur road, opposite to Lakhanpur Police Station. At around

22:45hrs on 13.03.2013 two persons, namely, Shri Ajay Sharma and Shri

Darshan Singh were crossing that area. Shri Maneet Kumar Intelligence

Officer requested them to accompany the NCB team to the place of naka

to witness the whole procedure of seizure, if any. At about 23.15hrs Shri

Maneet Kumar Intelligence Officer stopped Truck No. JK05-6906 which

was coming from Jammu.. Sh. Maneet Kumar, IO introduced himself

and rest of the NCB team members to driver and asked him for his

introduction. He introduced himself as Mohd. Maqbool Lone. Shri

Maneet Kumar intimated him their purpose of searching the vehicle.

Before search notice under section 50 of the Act was given to the driver

by Shri Maneet Kumar but he declined search before Magistrate and

Gazetted Officer and in reply stated that <He does not require any

gazetted Officer or Magistrate, He can take his search=. Then Shri

Maneet Kumar instructed his sepoy Shri Naveen Kumar to search the

vehicle. Then the sepoy started searching the vehicle in presence of

above said witnesses. While searching Shri Naveen Kumar saw Apple

box carrying packets. After that Shri Naveen Kumar pulled out that

Apple Box. Shri Maneet Kumar asked Mohd. Maqbool Lone to take out

all the packets from the Apple Box. The packets were taken out of the

Apple Box by Mohd. Maqbool Lone in the vehicle itself and counted, 08

packets were found. All the 08 packets were wrapped with Brown

coloured packing tape. After removing the tape, it was found to have

been covered by newspaper. On removing the News Paper, the

transparent polythene containing total no. of 32 small black coloured

balls, was found. Then Shri Maneet Kumar extracted a small quantity of

material from the black colored balls, mixed them thoroughly and tested

with the DD KIT and found the result positive for Charas. Then Shri

Maneet Kumar weighed all the 32 black coloured Balls with the

weighing machine and found the weight of all the Black coloured balls

as 14.978 kgs. Shri Maneet Kumar prepared the recovery cum