Criminal Appeal No. 1647 of 2007 and Criminal Appeal No. 956 of 2009, Arising out of SLP (Crl.) No. 2047 of 2008. Case: 1. Raju Premji, 2. Arun Kanungo Vs 1. Customs NER Shillong Unit, 2. Arun Kanungo. Supreme Court

Case Number:Criminal Appeal No. 1647 of 2007 and Criminal Appeal No. 956 of 2009, Arising out of SLP (Crl.) No. 2047 of 2008
Party Name:1. Raju Premji, 2. Arun Kanungo Vs 1. Customs NER Shillong Unit, 2. Arun Kanungo
Counsel:For Appellant: U.U. Lalit, Sr. Adv., Debjani Das, Purkaystha, Anu Gupta, Vikas Mahajan, Vinod Sharma and Bhaskar Y. Kulkarni, Advs and For Respondents: Sharbani Chakrabarty, Asha G. Nair, Anil Katiyar, Advs. for B.V. Balaram Das, Adv.
Judges:S.B. Sinha and R.M. Lodha, JJ.
Issue:Narcotic Drugs and Psychotropic Substances Act (61 of 1985) - Sections 29, 67; Evidence Act (1 of 1872) - Section 26
Citation:2009 CriLJ 3972, JT 2009 (8) SC 193, 2009 (7) SCALE 568
Judgement Date:May 06, 2009
Court:Supreme Court
 
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Judgment:

S.B. Sinha, J.

Leave granted.

  1. These two appeals involving common questions of law and fact are directed against a judgment and order dated 6th September, 2007 passed by a Division Bench of the Gauhati High Court in Criminal Appeal Nos. 3(SH) of 2006 and 4)SH) of 2006 affirming a judgment of conviction and sentence dated 21st June, 2006 passed by the learned Special Judge, NDPS, Shillong in Criminal (NDPS) Case No. 26/2003 whereby both the appellants were convicted under Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the NDPS Act') and were sentenced to undergo rigorous imprisonment for ten years each and to pay a fine of Rs.1,00,000/- each; in default of payment of fine, to further undergo a rigorous imprisonment for one year.

  2. Appellant Raju Premji (A-4) was a resident of Shillong. He, however, had been carrying on business in shoes in West Bengal. Appellant Arun Kanungo (A-3), however, is a resident of Meghalaya. They along with two other accused, namely Yashihey Yobin (A-1) and Lishihey Ngwazah Ngwazah (A-2) were prosecuted for commission of offences under the NDPS Act.

  3. Before placing on record the factual matrix of the matter, we may notice that whereas accused Nos. 1 and 2 have been convicted for possession of 380 gms. of heroin, appellants herein were convicted under Section 25 of the Act for abetment thereof as they purported to have associated themselves with finding prospective buyers in disposing of the contraband.

  4. The prosecution case in brief is that D. Pakyntein, PW-11, an Inspector in the Office of the Commissioner of Customs, NER Shillong, received an information from Special Operation Team of Meghalaya Police through N.K. Bhandari, PW-4, at about 7.50 p.m. on 19th August, 2003 that one Yasihey Yobin of Dum Dum, Nogthymmai, accused No. 1, had kept some heroin at his residence and if a search is conducted immediately, the contraband may be recovered. Thereafter Pakyntein contacted R.M. Chyne, Superintendent (PW-7), B. Kar, Inspector (PW-2) and N.K. Bhandari, PW-4. All of them proceeded towards the residence of accused No. 1 to conduct the search. On reaching there, they met the members of the Special Operation Team alongwith Yobin. After the particulars of Yobin were ascertained, his house was searched in presence of independent witnesses R.V. Dkha, PW-3 and D. Khyriem, PW-8, in course whereof he took out one suitcase wherein he had allegedly kept the packet of heroin. However, no heroin was found therein. On interrogation on the spot, Yobin informed that his brother-in-law, Lisihey Ngwazah, accused No. 2, must have removed the same. He instructed his wife to contact him and ask him to come back immediately with goods. Accused No. 2 after sometimes turned up with a black bag on his shoulder. On being asked, he opened the bag and took out the contents thereof which included one suit case cover of camouflage denim made of synthetic fabric and one green polythene bag, on opening whereof, one plastic packet containing white powder wrapped with two pieces of English newspaper was recovered.

  5. Indisputably, however, the information was received by M. Kharkrang, Additional Superintendent of Police, PW-9, from his source who informed that he had been offered to sell drugs by some people and they have to meet him at Keating Road, whereupon plain clothes policemen were posted, who nabbed the appellants therefrom. They were brought to the office of the Superintendent of Police. Physical search was made of the appellants but nothing was found. They were interrogated whereupon they allegedly disclosed that the drugs were in possession of accused No. 1.

    At that point of time, the Customs Officers were informed. Whereas the police officers reached the village of accused No. 1 first, the Customs Officers joined them later.

  6. Appellants herein were in the custody of the police officers since evening of 19th August, 2003. Their custody was handed over to the customs officers.

    It is now borne out from the record that whereas all the accused made two statements each on 20th August, 2003 purported to be under Section 67 of the Act. So far as accused No. 4 is concerned the statements made by him were marked as Exts 17 and 18 whereas those of the accused No. 3 are concerned...

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