Allahabad High Court
Shatrughan Pandey vs Union Of India Thru' Inspector Custom on 1 November, 2017
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 10.10.2017 Delivered on 01.11.2017 Court No. - 13 Case :- CRIMINAL APPEAL No. - 7568 of 2008 Appellant :- Shatrughan Pandey Respondent :- Union Of India Thru' Inspector Custom Counsel for Appellant :- Tripathi B.G. Bhai,Dinesh Chandra Mishra Counsel for Respondent :- B.K. Singh Raghuvanshi,A.G.A.,Sanjay K Singh Hon'ble Dinesh Kumar Singh-I,J.
1. This criminal appeal has been filed against the judgment and order dated 9/9/2008, whereby the accused-appellant Shatrughan Pandey has been sentenced 13 years rigorous imprisonment and fine of Rs.2.00 lakhs under section 8/20 (b) (ii) (C) of NDPS Act and in default of payment of fine, 3 years additional rigorous imprisonment.
2. The complaint filed against the accused in the Court below contains following facts in brief. In the complaint filed by Inspector of Customs, Radheshyam Dubey, posted at Customs (Prevention) Circle Basti, District Basti, it is stated that on 12/10/2006 at about 00.15 hours, a team of Custom Officials (Prevention) Circle, Basti was constituted comprising Shri V K Pandey, Superintendent, Shri Rajkumar, Inspector, Shri Neeraj Kumar Rai, Inspector, Shri K N Singh, Hawaldar, Shri Radheshyam Contingency worker and Shri G S Vishwakarma Driver, along with independent witnesses Shri Chandra Bhan and Shri Dilshad Ahmad for daily routine preventive checking. This team reached near Chainpur Chauraha on Gorakhpur-Faizabad Road by Government Gypsy and started checking the vehicles coming from Gorakhpur side. At about 03.00 hours a truck bearing no. HR38B/ 9697 was seen coming, which was signalled to stop by the Custom Officials. They found Shatrughan Pandey (accused appellant) and Vikas Kumar (the other accused) as driver and cleaner of the truck. Both of them were acquainted with the identity of the officers and were told to get their truck checked. The driver did not make any objection, following which the truck was checked and it was found carrying iron scrap. The papers were demanded to be shown relating to the loaded goods, upon which the accused no. 1 Radheshyam Pandey handed over Bill no. 17 dated 9/10/2006 issued by M/s. Raj Steel Traders, Akhraghat Road, Mirzapur, in which the weight of iron scrap was mentioned as 15375 Kgs. valuing Rs.1,61,437/- and another paper was relating to sweet-supari and gutka, which was issued by M/s. Maan Kali Enterprises, Banda (Bihar) on its letter pad, which also disclosed that an intimation was sent to Shri Ashwani Kalra, New Delhi to get back the damaged consignment of gutka and sweet-supari. Upon receipt of the direction of the officers, both the accused ascended the truck and began to untie the canvas (Tirpal). Thereafter the officials and the witnesses also climbed into the truck and it was found that on the upper side, bags of gutka and sweet-supari were kept while in the bottom of the truck, iron scrap was filled. When the bags of gutka/sweet-supari were being removed, some different kind of packets also emerged beneath the bags. Sensing some doubt, those bags were separated by the officials, 10 in number, and when they were opened, Ganja was found inside. On interrogation the accused no. 2, Vikas Kumar, cleaner denied any contraband while accused no. 1, Shatrughan Pandey told that all the consignments i.e. Ganja, gutka/sweet supari and iron scrap were loaded from the Godown of M/s. Sona Carrying Corporation, N.H. 28, Chandani Chock, Motihari (in front of patrol pump) Muzaffarpur and the goods were loaded on the direction of a person called Pappu from the Godown of transport and Pappu had told them to carry 10 packets Ganja to Ghaziabad safely. On the request of accused no. 1, the truck loaded with goods along with both the accused and witnesses, were taken to Customs Office, Basti for the purpose of safety, where all the packets of Ganja were unloaded and kept aside. Remaining 34 packets of gutka/sweet supari were found weighing 975.00 Kgs. and 565.00 Kgs. (loose gutka) in weight and iron scrap weighing 15375 Kgs. Since all these bags of gutka, sweet supari and iron scrap were used in concealment of Ganja, they were taken into custody by the officers. When the search of cabin of truck was carried out, papers of vehicle were recovered which revealed that accused no. 1 was registered owner of the truck and the driving licence was also in his name, so all these documents were also taken into custody. Adhering to the provisions of section 50 of NDPS Act, 1985, the accused persons were informed of their right to be searched before a Gazetted Officer or a Magistrate, to which they responded by saying that they had their consent for being searched before the Custom Officers of Gazetted rank. Thereafter the personal search of the accused was conducted but nothing objectionable was found except that Rs.1100/- was recovered from the person of accused Shatrughan Pandey, which were returned to him at once. Thereafter samples (samples of 50 gram each) of recovered Ganja were drawn and sealed in presence of the witnesses and on weighing, the remaining Ganja of 10 packets was found to be 141 Kgs. valuing Rs.4,23,000/-. Upon reasonable belief that the same had been transported in contravention of section 8/20 (b) of NDPS Act and the provisions of section 11 of the Customs Act 1962, the said material was liable to be confiscated, hence the entire remaining quantity of Ganja was sealed and seized and the signatures of accused, witnesses and officials were also taken on all the packets. The truck was also seized and recovery memo was prepared. The seizure was completed on 12/10/2006 and the signatures of accused, officers and witnesses were obtained thereon. Further interrogation was made of Shatrughan Pandey, who disclosed that Shri Pappu of "Sona Carrying Corporation Muzaffarpur" had told him to make contact with M/s. Indian Cargo Transport Company, plot no. 8, Transport Nagar , Ludhiana, on phone, on reaching Transport Nagar Ghaziabad, where somebody would come and collect the goods. He had also spoken to them to hand over all the packets of Ganja and gutka/sweet supari safely to him at Ghaziabad and thereafter he was supposed to unload the iron scrap at M/s. Goel Enterprises, Shamli bypass road Muzzaffar Nagar. On being interrogated by the officers as to why did he indulge in this illegal work, he replied that Mr. Pappu had lured him to get appropriate reward and that is why he had done this work for the first time. The statement of Shatrughan Pandey was recorded on 12/10/2006, in which he stated that he was owner and driver of truck no. HR 38B-9697. On 10/10/2006 he loaded 15375 Kgs iron scrap and 34 bags of gutka/sweet supari from M/s. Sona Carrying Corporation, where 141 Kgs. Ganja was also loaded by one Shri Pappu of M/s. Sona Carrying Corporation, which was in his knowledge. He was instructed to go to Ghaziabad and had to halt near Sales Tax barrier and to contact on phone the number mentioned in the challan form of Indian Cargo Transport Company and some one from that company would have taken the gutka and Ganja. Later on he had to carry scrap to Raj Steel Traders Muzzaffar Nagar, but was intercepted by them. Similarly the co-accused Vikas Kumar also stated in his statement recorded the same day that he was cleaner of the truck and was told that on 10/10/2006 accused Shatrughan Pandey had loaded iron scrap and other goods in Muzaffarpur and had told him that he would have to go to Ghaziabad first and thereafter Muzzaffar Nagar. He was unaware about the loading of Ganja. On 13/10/2006 the statement of both the accused persons were recorded under section 67 of NDPS Act and 108 of Customs Act, 1962, before Shri V K Pandey, Superintendent, Customs, Circle Basti, in compliance of summons issued to them on 12/10/2006, in which they made their statements as above. Thus, the accused persons had knowledge and were wilfully involved in transportation of Ganja for monetary consideration in violation of the provisions of section 8/20/29 of NDPS Act, 1985, and thereby rendered themselves liable for action under section 8/20/29 and 43 of the NDPS Act. Since there were adequate reasons for them to be arrested, they were duly arrested on 13/10/2006 under section 43 of the NDPS Act for transporting Ganja and the ground of arrest was disclosed to them. Before sending them to judicial custody, they were produced before the Court and were lodged in District Jail Basti. Further it is mentioned in the complaint that on 22/11/2006 summons under section 67 of the NDPS Act through Customs Superintendent Shri V K Pandey was issued in the name of Pappu. On the basis of his involvement being found in the form of abetment and conspiracy for loading and hiding contraband weighing about 141 KG in truck number HR 38 B- 9697 as per the statement of accused Shatrughan Pandey, but he did not appear. His complicity in the case was found punishable under section 29 of the NDPS Act, for which separate complaint would be filed. After preparation of the inventory and site plan, the sample of contraband Ganja was also sent for chemical analysis and a report was prepared by the Assistant Director, Government Opium and Alkaloid Works, Ghazipur, confirming that the sample under reference was found to be Ganja (Cannabis) within the meaning of NDPS Act, 1985. The accused persons were arrested after compliance of provisions of NDPS Act as well as the direction of the Supreme Court of India, hence the complaint was being filed. It was prayed that the accused be summoned from jail to face trial and be punished under relevant sections and the truck found involved in transportation of illegal Ganja be also seized.
3. The complainant filed 29 documents in support of his complaint. The accused Shatrughan Pandey was summoned from District jail and after making compliance of section 207 Criminal Procedure Code, the accused was charged under sections 8/20 and 29 of NDPS Act, to which he pleaded not guilty.
4. The following documentary evidence was taken into consideration by the learned Court below. The inventory filed by the prosecution (Exhibit Ka-1); Panchayatnama/recovery memo (Exhibit Ka-2), special report sent to Assistant Commissioner Customs, Gorakhpur regarding recovery (Exhibit Ka-4), special report sent to Joint Commissioner Customs, Lucknow (Exhibit Ka-5), the statement of co-accused Vikas Kumar and accused Shatrughan Pandey recorded on 12/10/2006 (Exhibit Ka-6) and (Exhibit Ka-7); the statement of the accused persons recorded on 13/10/2006 under section 67 NDPS Act and section 108 of Customs Act (Exhibit Ka-8) and (Exhibit Ka-9) respectively, examination report (Exhibit Ka-10), arrest memo of accused Vikas Kumar and Shatrughan Pandey (Exhibit Ka-11 and Exhibit Ka-12 respectively), site plan (Exhibit Ka-13), complaint (Exhibit Ka-14), certified copy of page nos. 24 and 125 from register of Malkhana (Exhibit Ka-15).
5. Besides above the prosecution also examined Shri Rajkumar, Inspector Customs Circle, Basti as PW-1, Shri V K Pandey, Commissioner Customs, Circle Basti as PW-2, Shri N K Rai Inspector Customs Basti as PW-3, Shri Khurshid Ahmad Khan, Inspector Customs Region Basti as PW-4 and Dilshad Ahmad as PW-5 witness of public, in support of the prosecution version.
6. After conclusion of the evidence of prosecution, the statement of accused under section 313 of the Criminal Procedure Code was recorded, in which both the accused stated that they did not have knowledge about Ganja being loaded on the truck; no recovery of alleged contraband was made in their presence from the truck and claimed innocence. No evidence was given in defence.
7. It was argued by the prosecution before the lower Court that on the basis of prosecution witnesses it emerged established beyond reasonable doubt that the accused Shatrughan Pandey was transporting illicit Ganja by his Truck No. HR 38B-9697 in collusion with one called Pappu for avarice of money, hence charge against him stood proved on the basis of evidence on record.
8. In rebuttal, the learned counsel for the accused argued that the accused was falsely implicated by Custom Officers in pursuance of a conspiracy; on 11/12-10-06 in the night, the Custom Officers stopped the truck of the accused for checking; the truck was loaded with illicit Ganja, in which its owner Pappu Singh was also sitting. The Custom Officers indulged in negotiating with Pappu for bribe to be paid to them in lieu of giving licence, in pursuance of which some amount was found deficient, which was required to be arranged by Pappu. Pappu assured that he would arrange for that amount demanded by Custom Officers and left the place; truck along with the loaded items was taken to Customs Circle Office. When in pursuance of the assurance given, money did not reach till 13/10/2006 by 7.00 AM, Custom Officials challaned Shatrughan Pandey antedating and anti-timing the occurrence. The driver of the truck, Shatrughan Pandey did not have knowledge till the search was made that the truck was loaded with Ganja, because to his knowledge only such items were loaded, relating to which papers were kept in truck cabin. That is why when he was directed to stop, he stopped the truck for being checked innocently. Had he known about illicit Ganja being loaded on the truck, he would dilly-dally in permitting its search being made and would have made an attempt to flee from the spot.
9. Having heard both the sides, the learned Court below nullified the arguments raised from the side of the accused one by one.
10. The learned Court below referred to statement of PW-1, Raj Kumar, who supported the prosecution version mentioned above and stated that on search being made of the truck, some different types of packets were seen, which were not mentioned in the documents shown by the accused. These packets were cut open and Ganja was found in them. In all, there were 10 packets of Ganja. At the instance of the accused and from the angle of security, for extensive search of the truck, the truck was brought to Customs Office, where after taking search, packets of Ganja were unloaded. Out of them about 50 grams each were taken out for sample and they were sealed. On the seal, the officers and the independent witnesses had put their signatures; accused had also put his signature. These packets were separately weighed and some of them were found to be 13 ½ kilograms, some of 14 kilograms, some of 12 kilograms and some of 14 ½ kilograms. Thus total Ganja recovered from the truck was 141 kilograms. Besides that there were 34 sacks of gutka and scrap also loaded. The inventory of the recovered material was prepared by him at the direction of Customs Superintendent, Shri V K Pandey which is marked as Exhibit Ka-1, which was signed by them, the witnesses, and the accused. The said recovery memo is Exhibit Ka-3 in his handwriting. The information about search, seizure and arrest was sent to Assistant Commissioner, Customs, Gorakhpur and Joint Commissioner Customs, Lucknow which are Exhibit Ka-4 and Exhibit Ka-5 respectively. The statement given by the accused Vikas Kumar and Shatrughan Pandey before Customs Inspector were Exhibit Ka-6 and Exhibit Ka-7 respectively. The written statement recorded of accused Vikas Kumar and Shatrughan Pandey under section 67 of NDPS Act and section 108 of Customs Act, by Superintendent V K Pandey are Exhibit Ka-8 and Exhibit Ka-9 respectively. The report of test of sample is Exhibit Ka-10. The notices issued to the accused persons by Superintendent Customs were paper no. 4 kha/39 and 4 kha/40. The memo of arrest of the accused are Exhibit Ka-11 and Exhibit Ka-12. The site plan is Exhibit Ka-13 and the complaint filed against the accused persons after finding the offences made out under section 8/20/29 of NDPS Act, is Exhibit Ka-14. In cross-examination this witness stated that the papers, except relating to Ganja, were found to be genuine. The accused was arrested on 13/10/2006 although Ganja was taken into custody on 12/10/2006. Immediately after recovery of Ganja accused was not arrested because till then the Superintendent had not taken his statement. The statement of accused were recorded on 13/10/2006 at 10 AM. PW-2 Customs Superintendent Shri V K Pandey also proved all the Exhibits from Exhibit Ka-1 to Exhibit Ka-13 and in cross-examination stated that it was not told to accused that they could give their search in presence of a Magistrate or a Gazetted Officer and that he himself was a Gazetted Officer, whether he was ready for search of the truck to be made before him. No written notice was given to the accused for the proceedings of recovery of illicit Ganja and its seizure. This proceeding was held on 11/12-10-2006 at 3 'O'clock in the night; at that time accused could not be arrested, he could be arrested only after the entire proceedings were over on 13/10/2006. He denied that there was any secret agreement between accused Pappu and him. Similarly PW-3 also supported the statements of PW-1 and PW-2. Khurshid Ahmad Khan, Inspector Customs, Basti Region deposing as PW-4 stated that he was In-Charge, Godown. He had brought the register of Godown. On 12/10/2006, the weight of illicit Ganja recovered by Custom Superintendent, Shri V K Pandey with his other companions from the truck in 10 packets was 141 Kgs, and the weight of other items was 1540 kilograms and 51375 kilograms. He had brought the 10 packets of recovered Ganja marked as material Exhibit Ka-1 to K-10, which was entered at serial number 232 of the register, certified copy of which was Exhibit Ka-15. In cross-examination it was stated that the items entered at serial number 232 were not deposited in Divisional Godown. PW-5 Dildhad Ahmad, an independent witness corroborating the statements of other witnesses has admitted his signature on Exhibit Ka-1, Ka-2 and Ka-3 and in cross-examination stated that the packet of Ganja was opened by him on the truck with the aid of a knife which was provided to him by Rajendra constable. Citing above evidence on record, the learned counsel for the prosecution argued that on the basis of the aforesaid evidence the accused appellant was guilty of the charge. It was specifically argued that the accused was told that he had a right to be searched in front of the Magistrate or a Gazetted Officer, but the accused responded to that offer by saying that since the Custom Officers were Gazetted Officers, hence they could take his search.
11. It was argued before the lower Court from the side of the accused that the search could not have been made between sunset and sunrise without complying with the provisions of section 42 (1) of NDPS Act. The entry in register of goods at serial number 232 shows that the case property was not deposited in Divisional Godown hence it would be inferred that the recovered contraband was not kept under proper security which will render recovery doubtful in view of the law laid down in 2005 (52) ACC 667, Ravi alias Neetu vs State of U.P. . It was also argued that if the provisions of section 42 and 50 of NDPS Act were violated while making recovery of contraband substance, in view of the law laid down by Supreme Court in Koluttumottil Razak vs State of Kerala, 2001 (43) ACC 170, the accused would be liable to be acquitted. The names of independent witnesses -Chandra Bhan and Dilshad Ahmad were not mentioned in Panchnama, Exhibit Ka-3; their names have been inserted at the top separately, which suggests that they were not independent witnesses and were made so only to give colour to the case. In cross-examination Dilshad Ahmad did admit that he used to drive all the vehicle of Custom Officers. According to Panchnama, Exhibit Ka-3, its proceedings were started since morning of 12/10/2006 till 12 noon, but till then the accused Shatrughan Pandey was not taken into custody until on 13/10/2006 rather he was taken in custody at 14.45 hrs, which was clear from the arrest memo, Exhibit Ka-12. It would suggest that the said recovery was ante-dated and anti-timed.
12. In rebuttal, learned counsel for the prosecution relied upon Babubhai Udhavji Patel and others vs State of Gujarat, (2006)1 SCC (Crl) 73 and it was hammered that the provisions of section 52, 55 and 57 were only directory and not mandatory, therefore, if any irregularity is found on behalf of the Custom Officials, its benefit would not go to the accused. Reliance is also placed on Union of India vs Major Singh and others, (2006) 2 SCC (Criminal) 614, in which the Supreme Court has laid down that if a search is made at a public place, of a public vehicle, the provisions of section 42 (2) NDPS Act would not be applicable, nor in such matters the officer making search would have to record reasons of satisfaction as required under section 42. Further reliance is placed on T. Thomson vs State of Kerala and aother, 2004 SCC (Criminal) 447, in which it is provided that if accused gives the statement of his own accord and after cross-examination of witnesses examined from the side of prosecution, Court reaches the conclusion that the statement of accused was voluntarily given, such a statement of accused would be admissible in evidence. Further reliance was placed on Union of India vs Munna and others, 2004 SCC (Criminal ) 1905, in which it is held that the provisions of section 25 and 26 of the Indian Evidence Act would not be applicable on officers of Customs Department; in such situation the statement of accused given to the Custom Officers (Exhibit Ka-9) under section 67 of NDPS Act and section 108 of Customs Act would be admissible. The accused Shatrughan Pandey has admitted in his statement that he had knowledge that illicit Ganja was being transported in the truck which was got loaded by one, called Pappu Singh. Regarding delay in arrest of the accused it was argued that the Custom Officer had recorded statement of the accused, but on his saying that he wanted to depose the next date, the statement of accused was recorded on 13/10/2006 instead of on 12/10/2006 and the incorporation of this fact has also been made in the complaint by way of annexing a copy of notice sent to the accused, therefore no unnecessary delay could be held to have been made in arrest of the accused.
13. The learned Court below held that in view of the law laid down in State of Himachal Pradesh vs Pawan Kumar, (2005) 4 SCC 350, no violation of section 50 of NDPS Act would be held to have been made, because the search was not made of the person of the accused, rather it was made of truck belonging to the accused. As regards the recovered contraband not being kept safely it is held that in Babubhai Udhavji Patel and others vs State of Gujarat, (2006)1 SCC (Crl) 73, the Apex Court has held that the provisions of section 52, 55 and 57 of NDPS Act were only directory and not mandatory, therefore in case any irregularity is found to have been made in keeping the recovered contraband safe, its benefit would not be given to the accused by passing acquittal order. As regards compliance of the provision of section 42 of the Act, it is held that from the side of prosecution, Exhibit Ka-4 and Exhibit Ka-5 have been proved which relate to information being sent by fax by the Superintendent Customs, Basti Region to the Assistant. Commissioner Customs, Gorakhpur and Joint Commissioner Customs, Lucknow on 13/10/2006, therefore, it would be treated to be sufficient compliance of the provisions of section 42 (2) of the Act. The law laid down in has been relied upon b M. Prabhu Lal vs. Assistant Director, Directorate of Revenue Intelligence, 2003 SCC (Criminal) 2024 y the prosecution in which it is laid down that if the proceedings of search and seizure are undertaken by a Gazetted Officer, the provisions of section 41 and 42 of the NDPS Act need not be complied and in the case at hand because the seizure and search proceedings were held by Superintendent Customs, Basti Region, Shri V K Pandey, who was a Gazetted Officer, therefore, there would be held no violation of the aforesaid sections. It was also expressed by the Court below that in Union of India vs Major Singh and others, (2006) 2 SCC (Criminal) 614, it has been laid down by the Supreme Court that if a public carrier is searched and seized at a public place after sunset and before sunrise, there would be no violation of the Proviso to section 42 and of the provision made under section 42 (ii), hence the argument contrary to it of the defence would not hold good. The objection raised regarding search of the truck made after bringing the same in the Custom Officer, Basti Region, being violative of the provisions of law, it is held by the Court below that the said action was resorted to because of security reasons at the request of the accused Shatrughan Pandey himself, hence no benefit of this would go to the accused. The argument that, had the accused known that there was illicit Ganja in his truck, on being directed to halt the vehicle for being checked, he would not submit to the checking, rather he would try to flee from there, has been rubbished by the Court below stating that the witnesses of prosecution have stated in cross-examination that accused Shatrughan Pandey had admitted that after the agreement between M/s. Sona Carrying Corporation and Pappu, Pappu had given assurance to the accused Shatrughan Pandey that he would be adequately rewarded if sweet supari and gutka along with illicit Ganja were reached at its destination and he had admitted that in his presence the Ganja was loaded in the truck concealing it below sweet supari/gutka and the scrap. Further it is mentioned that the statement record of accused Shatrughan under section 67 of NDPS Act and section 108 of the Customs Act would not be hit by sections 25 and 26 of the Indian Evidence Act in view of law laid down in Union of India vs Munna and others, 2004 SCC (Criminal) 1905 that sections 25 and 26 of the Indian evidence Act do not apply to officers of Customs Department. Reliance is also placed on T. Thomson vs State of Kerala, 2004 SCC (Criminal) 447, in which it is held that if a statement given under section 67 of NDPS Act by the accused, is found to have been given voluntarily by a Court of Law, in the light of consideration made of the evidence of prosecution, such statement may be believed. In the case at hand while cross-examining the witnesses of prosecution, no such question was put by the defence that the statement given in writing by accused Shatrughan Pandey was not in his handwriting or that the same was obtained by force, therefore, because he has admitted therein the allegation that it was in his knowledge that a person called Pappu had given him temptation for reaching the illicit Ganja to its destination for which he would be adequately compensated, the knowledge of Ganja being on the truck would be fairly imputed to the accused. Regarding delay in arrest of the accused, the Court held that it was on account of the accused himself saying that he wanted to give his statement the next day because of being tired, his statement could be recorded on 13/10/2006 and not on 12/10/2006, under section 67 of the NDPS Act, whereafter only he could be arrested.
14. Based on above interpretation of law and appreciation fact, the learned Court below held the accused guilty of having committed offence under section 8/20 of NDPS Act, however he was acquitted of charges under section 29 of NDPS Act. Simultaneously order was also passed of seizing the 141 kgs. illicit Ganja, 1540 Kgs. gutka and sweet supari, 15375 Kgs. iron scrap, Truck No. HR 38B 9697 and the ancillary material. There appears to be no wrong interpretation of law nor of evidence by the Court below in the estimation of this Court.
15. The learned counsel for the appellant has not challenged the above findings on facts, but has confined his arguments to the point of punishment. According to him the accused is extremely poor; he is not a previous convict; he has no criminal history; he is languishing in jail since 13/10/2006, hence has suffered incarceration of approximately 11 long years continuously; it is his first offence; because of poverty he could not pay heavy amount of fine; he has been awarded very harsh punishment which needs to be reduced to minimum i.e. 10 years and also default clause needs to be modified. If he is ordered to remain in jail even after the period of substantive sentence is over only because of his inability to pay fine, serious prejudice will be caused not only to him, but also to his family members who were innocent; he was simply a carrier of contraband and not a dealer of it; he appears to have indulged in commission of this crime due to need of money on account of poverty.
16. From the side of Union of India it is submitted that 141 grams of Ganja has been recovered from the accused which is a huge quantity much above the commercial quantity; the act of the accused is a crime against society and nation which is prejudicial to the young generation because such contraband substance, if passed onto them, would spoil their life by making them addict of its consumption. Hence there is no sufficient ground for reduction of the sentence of imprisonment which is imposed upon him, nor of reduction of the amount of fine, nor of modification in default clause.
17. I have considered the rival contentions of the learned counsel of the parties.
18. The trial Court has imposed punishment of 13 years rigorous imprisonment and fine of Rs.2.00 lakhs and in default of payment of fine additional rigorous imprisonment of 3 years. There is nothing on record to show that accused has ever been convicted earlier for any crime. The prosecution version shows that he fell prey to avarice of earning money which he would get if he had successfully reached the recovered Ganja at the designated place but the in meantime he was caught. It is his first offence as per record. The learned lower Court could have taken a little lenient view by imposing minimum punishment under law which is 10 years, but it has chosen to award punishment higher to that probably because the quantity of Ganja recovered was much higher than the commercial quantity. It is also apparent that the default clause carries 3 years additional rigorous imprisonment and the amount of fine being two lacs, appears to be such, which the accused would not be able to arrange and hence would have to suffer additional 3 years rigorous imprisonment. In view of this, taking into consideration all the facts and circumstances and looking to the poor financial condition as stated by the learned counsel for the accused appellant and not disputed by the learned counsel for Union of India, it would be proper if substantive sentence is reduced to minimum prescribed under 20 (b) (ii) (C) i.e. 10 years rigorous imprisonment instead of 13 years and in default of payment of fine he may be directed to further undergo simple imprisonment of one year.
19. In view of above, the appeal is partly allowed. The conviction of the accused appellant under section 8/20 (b) (ii) (C) of the NDPS Act is modified by reducing it to 10 years rigorous imprisonment instead of 13 years and in default of payment of fine of Rs. 2 lakhs he shall further undergo simple imprisonment of one additional year.
20. If the accused has already spent the said period in jail, he shall be set at liberty in this case forthwith, if not required in any other case.
21. The case property shall be disposed of as per rules after expiry of the period of appeal, if provided under law.
22. A copy of this judgment and order shall be sent to the Court below immediately for compliance.
Order Date :- 1.10.2017 AU/d