Delhi District Court
Custom vs . Belinda Mabheka on 30 March, 2011
Custom Vs. Belinda Mabheka
IN THE COURT OF SH. SANJIV JAIN : SPECIAL JUDGE NDPS
PATIALA HOUSE COURTS, NEW DELHI
Date of Institution : 15.07.2008
Judgment reserved on : 29.03.2011
Date of pronouncement : 30.03.2011
SC No. 22/09
ID No. 0243R1024142008
Custom Vs. Ms. Belinda Mabheka
D/o Sh. Nicolas Butau
R/O H.No. 557, Mukonono,
Road, New Marimba,
Harare, Zimbabwe
JUDGMENT
1. Customs through its Air Custom Officer Sh. Jarnail Singh filed the present complaint u/s 21, 23 and 28 of the Narcotics Drug and Psychotropic Substance Act 1985 (NDPS Act) against the accused.
2. The facts emanating from the complaint are that on 22/1/2008 the accused Ms. Belienda, a Zimbabwe National, holder of passport no. AN 377622 was at the departure hall of IGI airport for leaving for Harare by Ethiopian Airlines Flight no. ET605. 1 Custom Vs. Belinda Mabheka Suspecting on her movement, the custom officers kept a surveillance on her. After immigration clearance, she was intercepted when she was going for security checkup. Two independent witnesses were called. She was asked whether she was carrying anything in her baggage or with her which was required to be declared to customs to which she replied in negative. She was taken to the Custom Preventive Room. A lady Custom Officer Geeta Rani was called. The accused was served with notices u/s 102 of the Customs Act and u/s 50 of NDPS Act giving her option to get the examination of her baggage and her search before a gazetted officer of Customs or a Magistrate which she refused and stated that any Custom Officer could search her and her baggage. She was also apprised of her legal right u/s 50 NDPS Act. She was then searched in the presence of two lady panchas but nothing incriminating was recovered from her personal search.
The Air Custom Officer then called two checkedinbaggage of the accused from Ethiopian Airlines. Her hand bag / purse containing some documents was also taken in possession. The accused identified her baggages i.e. one black stroller suitcase of 'American Tourister' brand and second stroller bag of gray colour of 'BINHAO' brand bearing the tag no. A1 536383 and A1 536384 respectively. The numbers on the tags were tallied with the 2 Custom Vs. Belinda Mabheka numbers on the baggage stubs pasted on her boarding card. The bottom of the American tourister bag was found to be unusually thick. It was got unscrewed. One brown packet was recovered from beneath the plastic sheet at the bottom of the suitcase. The packet was found to contain off white powder which on testing gave positive for the presence of heroin with net weight of the substance to be 2.015 kgs. The accused could not give any satisfactory explanation of the recovered substance. Three representative samples of five grams each were drawn and given mark A1, A2 and A3. They were sealed in a cylindrical container with the seal of Custom Seal no. 6. The remaining substance was kept in a polythene bag and then in a container which was also sealed with the same seal. The parts of the suit case were also kept in a polythene bag. A pullanda was prepared which was sealed with the same seal. The baggage tags, baggage stubs and the boarding cards were resumed being relevant for the investigation of the case. A panchnama was drawn. The statement of the accused u/s 67 NDPS Act was recorded wherein she inculpated herself in the trafficking/illegal exporting of contraband. She stated that the packet was given by one Chakaobi for carrying to Harare. She was arrested. The Air Custom Officer submitted the report of seizure and arrest to the Air Custom Superintendent (Preventive). The 3 Custom Vs. Belinda Mabheka samples A1, A2 and A3 along with the case property were deposited in the valuable godown, entry to that effect was made in the register by the ACO Incharge Sh. Ashok Sharma.
On 23/1/2008 the sample mark A1 was sent to CRCL through Sh. V.K. Meena ACO alongwith the test memo in triplicate and the authority letter issued by the Air Custom Superintendent. The entry of seal was also made in the seal movement register. As per the report dated 4/3/2008, the sample A1 was found to contain Diacetylmorphine with its purity 56.5%. After the investigation, the complaint was filed.
3. After taking cognizance of the offence, copy of the complaint and the documents were supplied to the accused. Prima facie case was made out and charge u/s 21 (c), 23 (c) r.w.s. 28 NDPS Act was framed against the accused to which she pleaded not guilty and claimed trial.
4. To substantiate its allegations against the accused prosecution examined as many as 11 witnesses.
PW1 Sh. Jarnail Singh, Inspector Central Excise filed the present complaint ExPW1/A. He was the person who intercepted the accused, did the whole proceedings, served the accused with the 4 Custom Vs. Belinda Mabheka notice u/s 50 NDPS Act ExPW1/D and effected the recovery from the stroller bag. He drew a panchnama ExPW1/F, seized the baggage tags ExPW1/G1 and G2, two baggage stubs ExPW1/G3 and G4, boarding pass of the accused ExPW1/G5 and G6 vide memo ExPW1/F. He also issued the summons u/s 67 NDPS Act ExPW1/J to the accused and in his presence, the accused tendered her statement ExPW1/K. The accused was also arrested by the lady Custom Officer in his presence. He prepared the report u/s 57 NDPS Act ExPW1/L and sent to his superior Sh. D.D.Kaushik, deposited the case property and the other articles with the SDO (Arrival) vide receipts ExPW1/N1 to ExPW1/N7. He had also taken the Custom Seal no. 6 from SDO (A) Sh. Jagdish Bhatt, returned it after use and to that effect he made the entry. The case property was produced before him which he identified as ExPW1/S2, S5 S7, S8, S9, S13 and S17.
PW2 Ms. Geeta Rani was the Air Custom Officer at the IGI Airport. She was called by PW1 at the Custom Preventive Room. In her presence the whole proceedings were conducted. She also arrested the accused vide arrest memo ExPW2/B and conducted her personal search vide memo ExPW2/C. PW3 Ms. Fauzia Bakshi was working in Alpha Duty free shop at the departure hall of IGI airport. She joined the 5 Custom Vs. Belinda Mabheka investigation on the request of PW2. In her presence, notices ExPW1/D and ExPW1/E were served. A panchnama ExPW2/A was also drawn in her presence.
PW4 Sh. D.D Kaushik was the Air Custom Superintendent at IGI airport. He received the report u/s 57 NDPS Act ExPW1/L and sent the sample to CRCL by giving authorisation letter ExPW4/A. He also countersigned the detention receipt prepared by PW1.
PW5 Sh. V.K. Meena had taken the sample to CRCL and obtained its receipt ExPW5/B. PW6 Sh. Chandan Gupta was working in Alpha Future Airport Retails Pvt. Ltd. a duty free shop. He witnessed the whole proceedings of seizure and search and also signed on the panchnama ExPW1/F. The case property was also shown to him which he identified.
PW7 Sh. S.C. Mathur was the chemical examiner under whose supervision, the sample A1 was analysed vide report ExPW7/A. PW8 Sh. Jaibir Singh was the Lab Assistant CRCL. He received the sample from Sh. V.K. Meena and gave the receipt ExPW5/B. 6 Custom Vs. Belinda Mabheka PW9 Sh. Bhuwan Ram was the Assistant Chemical Examiner. He did the chemical analysis of the sample under the supervision of PW7 and found the sample answering positive for diacetylmorphine with its purity 56.5%.
It is also to be mentioned that finding variation in the colour in the case property viz a viz sample, an application was moved by the accused for retesting which was allowed vide order dated 7/10/2010. Fresh sample from the case property was taken and sent to the CRCL. As per the report dated 8/12/2010, the sample answered positive for the presence of diacetylmorphine with its purity 1.38%. Ld. SPP during the testimony of PW9 placed on record the clarification sought from the chemical examiner in regard to the variation in purity percentage to which he answered that he cannot comment about taking of the fresh sample from the case property and comment only if the same remnant sample is sent to the laboratory. PW9 also proved the opinion report ExWP9/A. PW10 Sh. Jagdish Bhatt was the SDO (A) at the Air Custom IGI airport. He issued the seal to PW1 and made the entry in the register ExPW10/A. He also received back the seal and made the entry.
PW11 Sh. Ashok Kumar was the ACO godown valuable incharge at the Customs IGI Airport. The case property was 7 Custom Vs. Belinda Mabheka deposited with him by PW1 including the jamatalashi to which he made the entry in the register vide ExPW11/A. He also handed over the sample A1 to Sh.V.K. Meena for taking to CRCL, made the relevant entry and received back the remnant sample from the CRCL. To this effect, he made the entry ExPW11/B.
5. The statement of the accused u/s 313 Cr.P.C was recorded wherein she stated that the baggage did not belong to her. She was detained being a foreigner. She was not carrying any baggage. Nothing was recovered from her personal search. The tags were manipulated by the custom officers. She was forced to write and sign on the documents. No such proceedings took place before her. Neither any contraband was recovered nor she tendered any statement rather she was falsely implicated in this case. She was detained by PW1 as some baggage was found unclaimed. She did not examine any witness in her defence.
6. I have heard the arguments advanced by Ld. SPP Sh. Parmod Bahuguna for the Customs and Ld. counsel Sh. F. Haq for the accused.
7. It was contended by Ld. defence counsel that the accused 8 Custom Vs. Belinda Mabheka being Zimbabwe national was falsely implicated in the present case. Nothing objectionable was recovered from her search. As per the case of the prosecution, the accused was under surveillance by the custom officer so why the search of the accused was not taken before the baggage was allowed to pass on. In the first statement recorded u/s 102 of the Customs Act, she had stated that she was not carrying any article which needs declaration but in the subsequent statement as claimed by the prosecution she has admitted the recovery of contraband which is unbelievable rather it goes to show that it was an involuntary statement. No person from the Ethiopian Airlines was called who cleared the baggage of the accused. Ld. Counsel stated that the prosecution has failed to connect the accused with the baggage. The prosecution did not examine the person who brought the baggage in the preventive cell where the search was conducted nor cited him in the list of witnesses. The prosecution is silent on the point whether the baggage was locked or how it was opened. Ld. counsel also referred the case of Rahul Saini vs. State 2006 JCC Narcotics 134 to contend that there is substantial difference in the test results of the samples taken from the very same packet which casts doubt on the issue as to whether the case property is the same as what is alleged to have been recovered.
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8. Ld. SPP on the contrary argued that the suspicious movement of the accused was noted in the checkedinarea of the departure hall of the airport. She was intercepted after the immigration clearance when she was going for security check up after crossing the custom counter. Before her search, she was asked whether she was carrying anything in her baggage or with her required to be declared to customs which she refused. She was then taken to the Custom Preventive Room and searched in the presence of a lady Custom Officer and two independent witnesses. Finding nothing objectionable, her two checkedinbaggage were called through the Ethiopian Airlines Staff. In one of the baggage, a packet was concealed which on opening was found to contain off white powder testing positive for heroin weighing 2.015 kg. The accused could not account for its possession. The samples were drawn. The sample answered positive for heroin with its purity 58.5%. From the search of the accused, the baggage stubs were recovered which were tallied with the baggage tag on the stroller bag and thereafter the search of the bag was conducted. Since the bag was not locked and only chained, so there was no occasion for the custom officer to seize the key of the baggage. The accused also inculpated herself in the trafficking of drug which she had received from Chakaobi. 10 Custom Vs. Belinda Mabheka As regards variation in purity, it could be due to passage of time and due to change in atmospheric condition for which the explanation was also sought from the chemical examiner vide ExPW9/A. Ld. SPP further submitted that all the facts and circumstances prove the conscious possession of the accused over the contraband recovered from her baggage which she had carried for the purposes for export by illegal means.
9. I have carefully considered the submissions.
10. Section 21 reads as whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder manufactures, possesses, sells, purchases, transports, imports interState, exports interState or uses any manufactured drug or any preparation containing any manufactured drug shall be punished.... Section 23 r.w.s. 28 NDPS Act provides punishment for an attempt to illegal export of manufactured drug.
11. PW1 has stated that on 22.01.08, the accused was intercepted on suspicion when she after the immigration check was approaching towards the security check area. He had asked the 11 Custom Vs. Belinda Mabheka accused whether she was carrying any contraband/narcotics etc. to which she replied in negative. Being not satisfied with her reply, he called a female custom officer PW2, two independent witnesses and in their presence he served the notices u/s. 50 NDPS Act Ex.PW1/D and u/s. 102 of the Customs Act Ex.PW1/E apprising the accused that through the lady officer, he has to take her personal search and that of her baggage and she can be searched in the presence of a magistrate or a gazetted officer which she declined stating that any officer of the custom could do so. He stated that PW2 took the accused in the custom preventive room, departure hall for her personal search but nothing incriminating was recovered. Thereafter through the airlines staff, the baggage of the accused was called. The accused identified her baggage. The tags on the baggage were tallied with the baggage tag stubs which had the same number. He stated that the accused was also carrying one hand bag i.e. Lady purse in which certain documents, two invoices, two E tickets, one enrollment form were kept. He stated that from the stroller bag of American Tourister brand, a brown colour packet concealed in the bottom containing off white material was recovered which the accused replied that it was a narcotic substance. He stated that the material on testing with the help of field testing kit also indicated positive for the presence of heroin 12 Custom Vs. Belinda Mabheka weighing 2.015kg (net weight). He stated that the accused could not give any satisfactory answer regarding possession/export of the recovered heroin so it was seized after drawing samples vide panchnama Ex.PW1/F. He stated that the baggage tags Ex.PW1/G1, G2, and baggage stubs Ex.PW1/G3, G4 boarding passes Ex.PW1/G5 and Ex.PW1/G6 were also seized vide memo Ex.PW1/F. The case property was produced before him which he identified as Ex.PW1/S1S5, Ex.PW1/S7S9, Ex.PW1/S11, Ex.PW1/S13, Ex.PW1/S15 and Ex.PW1/S17.
12. The testimony of PW1 is duly corroborated by PW2, PW3 and PW6 on the point of serving notices Ex.PW1/D and Ex.PW1/E and her arrest vide arrest memo Ex.PW2/B. Pw2 also proved her signatures on the panchnama Ex.PW2/A regarding the search of accused in the Custom Preventive Room. PW6 has stated that PW1 had called the checkedinbaggage of the accused from the Ethiopian Airlines which were two in numbers. The baggage tags were tallied with the baggage tag stubs and found to be the same. He stated that the accused was asked if the baggage belonged to her which she replied in affirmative. He also corroborated the testimony of PW1 on the point of recovery of contraband from the checkedinbaggage bearing the mark American Tourister, drawing 13 Custom Vs. Belinda Mabheka of samples, preparing of panchnama. He also identified the case property Ex.Pw1/S1S5, Ex.Pw1/S7S9, Ex.Pw1/S11, Ex.Pw1/S13, Ex.Pw1/S15 and Ex.Pw1/S17 and the accused being the same person who was apprehended at the IGI Airport. He denied the suggestion that he identified the accused at the pointing out of the officers. He proved his signatures on the panchnama Ex.PW1/F. He denied that the checkedinbaggage which were brought at the preventive room did not belong to the accused.
13. I do not find force in the contention of Ld. Defence Counsel that the accused being Zimbabwe national was falsely implicated in this case. PW1 has categorically stated that when the accused after the immigration check was approaching towards the security check area, he intercepted the accused on suspicion. It is not the case that the accused was under surveillance when she entered the airport. She was suspected when she was approaching towards the security check area thus, there was no occasion for the custom officer to search her/her baggage before she was allowed to pass on her baggage after getting the boarding pass. I am also not in agreement with the contention of the Ld. Defence Counsel that the prosecution has failed to connect the accused with the alleged baggage as no one from the Ethiopian Airlines was examined to 14 Custom Vs. Belinda Mabheka corroborate this fact. Testimony of PW1 and PW6 would show that when nothing was recovered from her personal search, her checkedinbaggage were called and from the American Tourister bag, off white substance testing positive for heroine was recovered. The numbers on the baggage stubs recovered from her hand bag were found tallied with the baggage tags on the checkedin baggage. The baggage tags and stubs also bear the same flight number. Further PW6 has stated that the accused was also asked whether the baggage belonged to her to which she replied in affirmative. Nothing has come in the testimony of the prosecution witnesses that when the baggage was brought by the Airline Staff, it was in open condition. That being the position, non examination of the Airline staff who had brought the baggage for search is not fatal to the case of the prosecution. It is not the case that PW6 knew the accused from before or was interested in her false implication. Facts and circumstances rather show that the accused was in conscious possession of baggage from which the contraband was recovered.
14. It was held in the case of Madan Lal and another vs. State of Himachal Pradesh 2003 (3) JCC 1330 that once the possession is established the person who claimed that it was not the conscious 15 Custom Vs. Belinda Mabheka possession has to establish it because how he came to be in possession is within its special knowledge. Section 35 of the Act give a statutory recognition to its possession before of a presumption available on record and similar is the position in terms of section 54 where also presumption is available to be drawn from the possession of illicit articles. In the instant case the accused by preponderance of probability of evidence failed to prove that he was not in conscious possession of the same.
15. In the instant case, prosecution has examined PW1 the Seizing Officer, PW10 SDO (A) who had issued the custom seal no. 6 to PW1, PW11 Incharge Godown with whom the case property and samples were deposited where relevant entry Ex.PW11/B was made in the register, PW5 who had taken the sample to CRCL on the direction of PW4, PW8 who had issued the receipt Ex.PW5/B and PW9 and PW7 the Chemical Examiners who analysed the sample and gave the report Ex.PW7/A. The case property and the samples were also produced in the court on which the seals were found to be intact, thus the prosecution has examined all the link witnesses to rule out the possibility of tampering with the case property. PW1 had also submitted report u/s. 57 NDPS Act to PW4 which fact is also proved by PW4. Thus due 16 Custom Vs. Belinda Mabheka compliance u/s. 50,55,57 NDPS Act was made as guided and provided in the case of Ritesh Chakarborty v. State of Madhya Pradesh 2006(3) JCC (Narcotics) 150.
16. Ld. counsel has contended that there is a marked difference in the test results of the samples taken from the very same packet which casts doubt on the issue as to whether the case property is the same as what is alleged to have been recovered. Ld. counsel referred the case of Rahul Saini vs. State 2006 JCC Narcotics 134 to contend that the recovery was not made in the manner it is alleged to have been made. Ld. SPP on the contrary argued that although there is variation in two test reports, but it has occurred because of passage of time. There is no evidence to show that there has been tampering with the case property or the sample sent to the laboratory because both the reports of the laboratory have indicated that the seals were intact.
17. I have perused both the reports. The first sample was drawn on 22.01.08. As per the report dated 04.03.2008 the samples mark A1 contained Diacetylmorphine with its purity 56.5%. As per the report dated 09.12.2010, the fresh sample taken from the case 17 Custom Vs. Belinda Mabheka property gave positive for Diacetylmorphine with its purity 1.38%. The illicit seized NDPS material of natural, semi synthetic in origin i.e. Opium, Charas, Ganja and Heroin etc. are non homogeneous in nature, hence if resampled, sample variation in contents of active substances will occur. If resampling is done after a gap of considerable duration, then great variation in percentage of active content can occur due to the reason that (i) natural products are prone to get infected with bacterial and fungal micro organism, which causes a change in chemical composition of organic material by decomposition partly or fully, fast deterioration of a material will occur due to effect of light, high temperature and humidity. It is not the case that the heroin was manufactured in the laboratory rather the crude method was adopted in preparing the heroin. Even on reexamination the sample was found to contain Diacetyl morphine. In the absence of any evidence to the contrary it cannot be doubted that the recovery was not made in the manner it is alleged to have been made. The observations in the case of Rahul Saini supra were only on the bail application and not on the merits of the case. In the case of Rajni Devi Vs. State 2005 IV AD (Cr.) DHC 382 there was a discrepancy in two FSL reports, the case was remanded back to the trial court with the direction to clarify the 18 Custom Vs. Belinda Mabheka position from the chemical examiner. In the present case, the prosecution has sought clarification from the CRCL vide letter Ex. Pw9/A dated 11.02.2011. It was clarified that the drawl of sample at the first stage at the time of actual seizure, safe storage of case property during this period and subsequent drawl of another sample at the second stage from the same seizure (case property) lying at malkhana after lapse of significant period may also be looked into. It is also stated that test results of second sample should not be co related with the earlier results. PW9 who was further examined for seeking this clarification has categorically stated that he can comment only after the same remnant sample is sent to the laboratory. He stated that the report in respect of the second sample is also correct. It is to be noted that the fresh samples from the case property was taken in the court in the presence of the accused and her counsel. The sample also reported for the presence of Diacetylmorphine but with changed purity i.e. 1.38%. So, it is proved that the substance which the accused was carrying contained Diacetylmorphine. It cannot be said that the difference in test results of the samples taken from the very same packet casts doubt as to whether the case property is the same. At the best, the accused would be entitled to get benefit of purity on the basis of the second report of the sample taken from the case property in the 19 Custom Vs. Belinda Mabheka court. Thus, in the present scenario applying the ratio laid down in the case of Ansar Ahmed Vs. State 2005 (4) RCR (Crl.) 393 considering the second report, the actual quantity of the heroin comes to 27.81 gms which is more than the small quantity but less than the commercial quantity.
18. In the instant case, besides recovery, the accused tendered her statement ExPW1/K before PW3 and PW6 inculpating himself in the alleged trafficking. She has given certain facts which were in her exclusive knowledge. She has stated that one Chaka Obi had given her the suitcase to carry it to Harare and told her that it contained something in the bottom of suitcase. She stated that during her stay with him, he had told her that if she would carry powder which she had suspected to be heroin, he would pay her 2000 US$ and to and fro fare which she agreed. In the instant case the accused did not retract from the statement at the earliest available opportunity. The retraction was filed on 1.4.08. She was also subjected to medical examination where she was found conscious, oriented and there was no sign of any fresh external injury on her person. Nothing has come on record that she was subjected to third degree or her statement was extracted by use of force. Hon'ble High Court in the case of Rehmatullah vs. NCB 20 Custom Vs. Belinda Mabheka 2008(3) JCC (Narcotics) 174 made reference to the judgments concerning the interpretation of section 67 NDPS Act and also referred the case of Raj Kumar Karwal v. Union of India 1991 CrLJ 97 (SC) held that such statements made to the officers of the Department of Revenue Intelligence are not hit by Section 25 of the Evidence Act.
In M. Prabhulal v. Assistant Director, DRI 2003 (3) JCC 1631, SC it has been held that if the confessional statement is found to be voluntary and free from pressure, it can be accepted.
19. In the instant case on closure scrutiny of statement coupled with the documents I find that the information given by the accused co relate her. She has failed to show that any part of her statement is incorrect. There are so many other facts disclosed by her but she has failed to prove that any of facts mentioned therein is false. I am of the considered view that the statement made by her was a voluntary statement.
20. It is a case of recovery of huge quantity of heroin. It is not possible to plant such a huge quantity upon the accused. Moreover, there is no reason to falsely implicate the accused. In the case of 21 Custom Vs. Belinda Mabheka State of Punjab Vs. Balwant Rai 2005(1) JCC (Narcotics) 103:
"The quantity was large, it was held that the question of implanting does not arise". In the case of Sanjiv Kumar Vs. State of H.P. 2005(1) Crimes 358 (H.P.) it was observed: "It is not believable that the police would implicate an innocent person to such a serious case by planting a huge quantity of charas on his person...... police had no axe to grind in implicating the accused".
21. On closer scrutiny of the evidence I do not find any material contradiction in the testimony of the prosecution witnesses who were cross examined at length. Even otherwise a small contradiction here and there cannot make the testimony of the witnesses doubtful. Minor discrepancies are very natural to occur in the testimony of different witnesses.
22. On considering the facts available on the record, the documentary, sworn testimonies of the witnesses after its detailed scrutiny no doubt is left in mind that the accused had conscious possession of illicit heroin which she attempted to export from India to abroad.
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23. I, therefore, hold the accused guilty and convict her of the offence punishable U/s.21(b) and 23(b) r/w Section 28 NDPS Act. Announced in the open Court On this 30th day of March ,2011 (Sanjiv Jain) Special Judge NDPS : New Delhi Patiala House : New Delhi 23 Custom Vs. Belinda Mabheka IN THE COURT OF SH. SANJIV JAIN : SPECIAL JUDGE NDPS PATIALA HOUSE COURTS : NEW DELHI SC No. 22/09 Custom Vs. Ms. Belinda Mabheka ORDER ON SENTENCE
1. Vide separate judgement the accused has been convicted of the offence punishable u/s 21(b)& 23 (b) r/w s. 28 of NDPS Act.
2. Ld. SPP Shri Pramod Bahuguna has prayed for maximum sentence provided under the statute and submitted that the sentence should be proportionate to the gravity of the offence.
3. Ld. Counsel for the convict submitted that she is not a previous convict. She has remained in custody for about three years. She be given an opportunity to reform and rehabilitate.
4. I have considered the submissions.
5. The Hon'ble Supreme Court in the case of Union of India Vs. Kuldeep Singh 2004 Vol. 2 SCC 590 held :
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Custom Vs. Belinda Mabheka Imposition of sentence without considering its effect on the social order in many cases may be unreally a futile exercise. The social impact of the crime e.g. where it relates to offences relating to narcotics drugs or psychotropic substance, which have great impact not only on the health fabric but also on the social order and public interest, cannot be lost sight of and per se requires exemplary treatment. Any liberal attitude by imposing meager sentences of taking too sympathetic view merely on account of lapse of time or personal inconveniences in respect of such offence will be result wise counter productive in the long run and against social interest which needs to be cared for and strengthened by a string of difference inbuilt in the sentencing system. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.
6. In the present case, the convict was involved in the trafficking of narcotics drug i.e. heroin. The effect of its consumption on the society is disastrous. It eats away the life and vigour in the society. Illegal trade of such contraband would have adverse impact on the lives of uncountable persons.
7. The incident pertains to the year 2008. The Convict is aged 25 Custom Vs. Belinda Mabheka about 29 years and unmarried. She has remained in Custody for about 3 years. It is a case of recovery of intermediate quantity of heroin i.e. 27.81 gms on the basis of purity percentage which she attempted to export to Harare. Purpose of punishment is to reform and rehabilitate the offender.
8. Taking into consideration the totality of facts and the circumstances, antecedents and family background of the convict, I sentence her to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.20,000/ in default thereof to undergo simple imprisonment for a period of six months for the offence punishable u/s 21(b)NDPS Act. I also sentence her to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.20,000/ in default thereof to undergo simple imprisonment for a period of six months for the offence punishable u/s 23(b) r.w. s.28 NDPS Act. Both the sentences shall run concurrently. She be given benefit of section 428 Cr.P.C. The case property be confiscated to the State after the expiry of period of appeal/revision.
File be consigned to Record Room.
Announced in open Court (Sanjiv Jain)
on this 30th of March, 2011 Special Judge NDPS : New Delhi
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