Delhi District Court
Ncb vs . Nthabiseng Josephina Bulayi & Ors. on 31 May, 2014
NCB Vs. Nthabiseng Josephina Bulayi & ors.
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS : PATIALA HOUSE COURTS:NEW DELHI
SC No. 22/13
ID No. 02403R0128182013
Narcotics Control Bureau
Through: Shri C.S.K. Singh,
Intelligence Officer,
Narcotics Control Bureau, New Delhi
Versus
1. Ms. Nthabiseng Josephina Bulayi
D/o Sh. Bulayi
R/o 52 Apetitle Road, Randfontin,
South Africa
2. Ms. Grace Bongiwe Makhaliphe
W/o Sh. Hilton
R/o 54, Aurgly Court,
Street Smith & Wonder
Jourpert Park, Johannesburg
South Africa
Date of Institution : 19.09.2013
Judgment reserved on : 30.05.2014
Date of pronouncement : 31.05.2014
JUDGMENT
1. The Narcotics Control Bureau (herein after referred to as NCB) through its Intelligence officer (IO) Sh. C.S.K Singh has filed the present complaint SC No. 22/2013 Page No. 1 of 24 NCB Vs. Nthabiseng Josephina Bulayi & ors.
against the accused persons u/s 9A, 25A, & 29 of the Narcotic Drugs and Psychotropic Substances Act (herein after referred to as NDPS Act).
2. Briefly stated, the facts that can be culled out from the assertions made in the complaint and the documents filed therewith are as follows :
(a) On 20/7/2013 Sh. Rajesh Kumar, IO received an information from Inspector Tulsi Ram, CISF that two foreign nationals namely Nthabiseng Josephina and Grace Bongiwe who were to depart from IGI Airport for Gaborone via Nairobi by Kenya Airways flight 221 are suspected to be carrying huge quantity narcotic drugs in their baggage.
(b) The information was reduced into writing and put up before Sh.
R.K. Singh, Superintendent, NCB and on his instructions a raiding team consisting of Intelligence Officers of NCB namely, C.S.K. Singh, Rajesh Kumar, Vishwanath Tiwari, Vasudev Bhardwaj and Malkeet Singh proceeded for the airport from NCB office and reached the terminal 3 of IGI airport at about 2310 hours. On reaching the airport Sh. C.S.K. Singh, IO met Sh. Tulsi Ram, Inspector CISF and Tulsi Ram then led the team to the XBIS system where suspected passengers were sitting. On the request of IO, Sh. Sandeep Prabhakar, CISF staff official and Sh. Sandeep Kumar, Porter, agreed to witness the proceedings that were to be conducted by the NCB team. On inquiry the suspects revealed their SC No. 22/2013 Page No. 2 of 24 NCB Vs. Nthabiseng Josephina Bulayi & ors.
names as Ms. Nthabiseng Josephina Bulayi and Ms. Grace Bongiwe Mkhaliphe.
(c) Both the aforementioned ladies were then served with notices u/s 50 NDPS Act and were made to understand that they have a legal right to be searched before a Magistrate or a Gazetted Officer but both the accused persons refused to exercise the said right and informed that any NCB officer/lady officer could conduct their search. Thereafter, IO C.S.K. Singh conducted the search of the one black colour 'blue star' marked bag and one white colour ladies hand bag of accused Nthabiseng Josephina Bulayi but nothing incriminating was found.
(d) Thereafter, IO conducted the search of luggage of accused Nthabiseng Josephina Bulayi consisting of one purple coloured "American Tourister" suitcase and one olive green colour bag having mark "XRacing". The purple coloured "American Tourister" suitcase was found containing 37 gift items wrapped in cellophane plastics and olive green coloured bag was found containing 20 gift items wrapped in cellophane plastics. After opening the Cellophane packets, each packet was found containing four separate gift items wrapped in different colour gift papers and two artificial ladies choti. On opening the gift paper of each gift item, it was found containing rectangular wooden boxes containing a cylindrical concealment wrapped in khaki colour plastic SC No. 22/2013 Page No. 3 of 24 NCB Vs. Nthabiseng Josephina Bulayi & ors.
tapes and on cutting open the khaki tapes of concealments white crystalline powder were recovered from therein. The white substance on being tested with the help of Field Testing Kit gave positive result for pseudoephedrine, (a controlled substance). All the substance from the wooden box recovered from the purple coloured suitcase was collected in five transparent polythenes and mixed properly and on weighing its weight came out to be 18.300 kg. Two samples of 25 grams each were drawn out from the recovered substance and were put in zip lock pouches and were then placed inside separate paper envelopes. The samples were given marks A1 and A2 and the remaining substance was converted into a parcel and kept in a plastic sack and was given mark A. The other packing material was kept in the same purple coloured American tourister suitcase and was given mark A3. Thereafter all the substance from the wooden box recovered from the olive green colour suitcase was collected separately and mixed properly and on weighing its weight came out to be 10.450 kg. Two samples of 25 grams each were drawn out from the recovered substance and were put in separate zip lock pouches and were then placed inside separate paper envelopes. The samples were given marks B1 and B2 and the remaining substance was kept in a plastic sack and given mark B. The other packing material was kept inside the same Olive green colour mark "XRacing" carry bag and SC No. 22/2013 Page No. 4 of 24 NCB Vs. Nthabiseng Josephina Bulayi & ors.
the bag was further kept inside a plastic sack and was given mark B3. The remaining black colour "Blue Star" marked hand bag was given mark C.
(e) Thereafter, IO conducted the search of the luggage of accused Grace Bongiwe Mkhaliphe consisting of one black and light purple coloured handbag marked "Reflex" and one black coloured small bag marked "Sports" but nothing incriminating was recovered from them. Thereafter, IO conducted the search of remaining luggages i.e. two black coloured bags marked "Diesel". Both bags were found containing 21 sarees each wrapped on a corrugated cylindrical sheets. On opening the said corrugated sheets, it was found that each corrugated sheet was containing a concealment wrapped in khaki plastic tape. On opening all the 21 concealments, each of them was found containing white coloured crystalline substance, which on being tested with the help of Field Testing Kit gave positive result for pseudoephedrine. All the substance recovered from the one black coloured bag was collected separately and mixed properly and on weighing its weight came out to be 10.450 kg. Two samples of 25 grams each were drawn out from the recovered substance and were put in separate zip lock pouches and were then placed inside separate paper envelopes. The samples were given marks D1 and D2 and the remaining substance was kept in a plastic sack and SC No. 22/2013 Page No. 5 of 24 NCB Vs. Nthabiseng Josephina Bulayi & ors.
given mark D. The packing material was kept inside the same black colour mark "Diesel" bag and and was given mark D3. Thereafter all the substance from the second black coloured was collected separately and mixed properly and on weighing its weight came out to be 10.450 kg. Two samples of 25 grams each were drawn out from the recovered substance and were put in separate zip locked pouches and were then placed inside separate paper envelopes. The samples were given marks E1 and E2 and the remaining substance was kept in the plastic sack and given mark E. The packing material was kept inside the same black colour mark "Diesel" bag and and was given mark F.
(f) The contraband substance along with other items were properly seized and sealed. The test memo was also prepared in triplicate. Panchnama was prepared.
(g) Accused persons were served with summons u/s 67 NDPS Act and directed to appear in the NCB office on 21.07.2013 to tender their statements and in pursuance of the same they tendered their voluntary statements in the office of the NCB. The statement of various witnesses u/s 67 of the NDPS Act were also later on recorded during investigation.
(h) Since the accused persons appeared to have committed offences punishable under Section 25A & 29 of the NDPS Act, they were arrested on 21.07.2013 and were thereafter got medically examined. SC No. 22/2013 Page No. 6 of 24 NCB Vs. Nthabiseng Josephina Bulayi & ors.
(i) Reports of arrest and seizure under Section 57 of the NDPS Act were submitted by the seizing and arresting officers Sh. C.S.K. Singh, Sh. Rupesh Kumar and Sh. Pradeep Singh to Superintendent and the intimation of the arrest of the accused persons were also conveyed to the Ministry of External Affairs.
(j) The case property along with samples and test memo was deposited with the Malkhana Incharge and on 22.07.2013 the samples along with test memos were sent to the CRCL, New Delhi for testing and after receiving the report from CRCL that all the samples gave positive test for pseudoephedrine hydrochloride, the present complaint was filed.
3. On the basis of the material on record vide order dated 21.11.2013 charges were framed against both the accused persons for having made an attempt to export pseudoephedrine hydrochloride outside India and thus for having committed an offence punishable under Section 25A of the NDPS Act. Both the accused persons pleaded not guilty to the charges framed against them and claimed trial.
4.The prosecution in order to prove its case has examined 5 witnesses. Further the CRCL report has been tendered in evidence u/s 293 CrPC by the Ld. SPP and as per the said report the samples drawn out from the substance recovered from the accused have tested positive for pseudoephedrine SC No. 22/2013 Page No. 7 of 24 NCB Vs. Nthabiseng Josephina Bulayi & ors.
hydrochloride. It is relevant to mention herein that Ld. Defence Counsel has categorically stated that he is not disputing the said CRCL report.
5.PW1 Sh. Chandershekhar Kumar Singh is the main Investigating Officer of the present case. He has deposed about the search and seizure proceedings conducted by him. The search authorisation deposed to have been issued by Superintendent in his favour has been exhibited as Ex.PW1/A. The legal notice under Section 50 of the NDPS Act stated to have been issued to the accused Nthabiseng by him has been exhibited as Ex.PW1/B. The panchnama deposed to have been prepared by PW1 has been exhibited as Ex.PW1/C. The copy of test memo has been exhibited as ExPW1/L. Various summons issued by PW1 to the persons called for inquiry and who tendered their statements u/s 67 of NDPS Act have also been duly exhibited. The case property and the samples were also duly produced before the court and were duly exhibited. The case property and the samples were also duly produced before the court and were duly exhibited.
6.PW2 Inspector Tulsi Ram, CISF, IGI Airport, has inter alia deposed that on 2021 July, 2013 he was posted as an Inspector with IGI airport, New Delhi. This witness has further deposed that he had received information from his junior Ct. Prabhakar that the luggage of two ladies on random checking on the xray machine have been found to contain some SC No. 22/2013 Page No. 8 of 24 NCB Vs. Nthabiseng Josephina Bulayi & ors.
suspicious material. He has further deposed that he immediately reached there and had checked the baggage of the accused persons on the xray machine and observed some suspected articles in the baggage of accused persons. According to this witness, he then opened the luggage and on opening the same it was found containing some powdery like substance and thereafter he informed Sh. Rajesh Kumar, IO NCB on his telephone.
7.PW3 Sanjeev Kumar, Sepoy has interalia deposed that on 22.07.2013 he had carried the sample packets to the CRCL on the instructions of Sh. Jai Kishan, Superintendent, NCB. The authority letter issued in his name by Superintendent and acknowledgment issued in his name by CRCL have been exhibited as Ex.PW3/A and ExPW3/B respectively.
8.PW4 Sh. Vikas Yadav, IO has inter alia deposed that on 3/7/2013 he was working as Intelligence Officer Malkhana Incharge in NCB, DZU, R.K. Puram and that in the present case, the entire case property, test memo in triplicate were deposited with him in the Malkhana and he had made an entry to this effect in the Malkhana register. He has also deposed that samples mark A1, B1, D1 and E1 were sent to CRCL through Sepoy Sanjeev Kumar on 22/7/2013. According to this witness he had made relevant entries in the register. The relevant page of the malkhana register containing the said entries has been exhibited as Ex.PW4/A. SC No. 22/2013 Page No. 9 of 24 NCB Vs. Nthabiseng Josephina Bulayi & ors.
9.PW5 Israr Babu, Nodal Officer has proved on record the call details pertaining to mobile numbers 8860726127, 9811387588 and 7838438059 for the period 15.07.2013 to 20.07.2013 and the same have been exhibited as Ex.PW5/B, Ex.PW5/E and Ex.PW5/H respectively. He has also proved the customer application forms of the mobile no. 8860726127, 9811387588 and 7838438059 and the same have been exhibited as Ex.PW5/C, Ex.PW5/D and Ex.PW5/G respectively.
10. The entire incriminating evidence discussed herein above was put to the accused persons on 30/5/2014, the date fixed for recording of the statement of the accused persons u/s 313 CrPC. On the said date during the recording of the statement of the accused persons, both the accused persons admitted before this Court that they were apprehended in the manner deposed by the NCB officials and that the search of their baggage had resulted in recovery of white crystalline powder as deposed by the NCB witnesses. The accused Nthabiseng Josephina Bulayi in her statement tendered u/s 313 CrPC has stated that she is a native of South Africa and was working as an Event Manager before her apprehension in this case. She has further informed this Court that she is a single mother and has 3 children and her parents were also dependent upon her and that she was unable to earn sufficient money to raise her children and to look after her parents. . She has further narrated before this Court that she had met one lady named Leena in South Africa SC No. 22/2013 Page No. 10 of 24 NCB Vs. Nthabiseng Josephina Bulayi & ors.
through a friend and the said lady had told her that if she wishes to make quick money she can help her and that the said lady also told her that she will arrange air tickets, visa, hotel stay for her in India and and all that she will have to do is to transport some chemical from India to South Africa. According to this accused that lady Leena promised her that she would be paid 8500$ for the aforementioned job and since her financial condition was not very good, she agreed to the proposal of Leena. As per the statement given by this accused the said lady had also told her that she will be given the said chemical by some person in India and gave her the mobile number of the said person and that on reaching India she called up on the said mobile and one lady gave her address and told her to collect the chemical from her. She has further informed this Court that that lady was an Indian lady and the said lady gave her some wooden boxes in which the chemical was told to have been concealed. This accused has also stated that she had no knowledge that pseudoephedrine hydrochloride had been concealed in the bags given to her though she knew that the bags contained a powder. She has further stated before this Court that she did not know her co accused Grace before her apprehension in this case and had met her only at the airport after her apprehension.
11. Accused Grace in her statement tendered u/s 313 CrPC has stated before this Court that she is a native of South Africa and was a vegetable vendor SC No. 22/2013 Page No. 11 of 24 NCB Vs. Nthabiseng Josephina Bulayi & ors.
and selling tomatoes, cabbage etc. by putting temporary stalls before her apprehension in this case. She has further informed this Court that she has 3 children and her husband also used to sell vegetables along with her and that they were unable to earn sufficient money to raise their children. She has further narrated before this Court that her elder brother has expired and his wife Ms. Mabis told her that if she wishes to make quick money she can help her and she will arrange air tickets, visa for her in India and and all that she will have to do is to transport some chemical from India to South Africa and also promised her that she would be paid 20,000 Rynds for the aforementioned job. According to this accused since her financial condition was not very good, she agreed to the proposal of her sister in law. This accused has further stated that her sister in law also told her that that she will be given the said chemical by some person in India and gave her the mobile number of the said person. She has further informed this Court that on reaching the airport in India she called up on the said number and one person came to pick her up at the airport and took her to his house where she stayed for 21 days and that on the date of her apprehension that person took her along to some other place where two other persons met them and handed her two bags in which the chemical was stated to be concealed and then she was put in a taxi and she came to the airport. This accused has taken a similar stand before this Court namely that though she knew that the SC No. 22/2013 Page No. 12 of 24 NCB Vs. Nthabiseng Josephina Bulayi & ors.
bags being carried by her contains a chemical, she had no idea of its nature. She has further informed this Court that she did not know her coaccused Josephina before her apprehension in this case and had met her only at the airport and had casual talk with her.
12. After the accused persons had narrated the aforementioned facts to this Court in their statements tendered u/s 313 CrPC, Sh. B.S. Arora Ld. SPP for NCB had prayed that this court must immediately hold the accused persons guilty of the offences that they had been charged with. Ld. Defence Counsel Sh. T.K. Mahapatra, on the other hand, had submitted before this Court on 30/5/2014 that all that the accused persons have admitted in their statements u/s 313 CrPC is the fact that they were apprehended in the manner deposed by the NCB witnesses and that the recovery of some powder had taken place from their baggage in the manner deposed by the NCB witnesses. His contention is that the accused ladies have never admitted that they had the knowledge that they were exporting psuedoephedrine hydrochloride outside India. According to the Ld. Defence Counsel that the accused ladies did not have the mensrea to export pseudoephedrine hydrochloride outside India as they did not have the knowledge that the powder being carried by them was pseudoephedrine hydrochloride. His contention therefore is that the accused persons cannot be held guilty of the offences that they have been charged with. SC No. 22/2013 Page No. 13 of 24 NCB Vs. Nthabiseng Josephina Bulayi & ors.
13.In the considered opinion of this court the contention being forwarded by the Ld. Defence Counsel cannot be accepted in the facts of the present case. In the present case the accused persons have faced trial for having made an attempt to export pseudoephedrine hydrochloride in contravention of the orders issued by the Central Government u/s 9A of the NDPS Act. Section 9 A of the NDPS Act gives the Central Government the power to issue orders to control and regulate controlled substances and Section 25 A of the Act provides the punishment for contravention of the orders issued u/s 9A of the NDPS Act. In exercise of the said powers, the Central Govt. has issued the Narcotic Drugs and Psychotropic Substances (Regulation of Controlled Substance ) Order, 1993 to regulate the manufacture, distribution, sale, import, export or consumption of any controlled substance. Further vide notification no. SO 1296 (E) dated 28/12/1999 , the Central Govt. had declared pseudoephedrine and its salts as a controlled substance and therefore it is clear that no person can export pseudoephedrine hydrochloride outside India in contravention of the provisions of the Narcotic Drugs and Psychotropic Substances (Regulation of Controlled Substance ) Order, 1993.
14. As narrated herein above in support of its case, the prosecution has examined 5 witnesses in all. The Intelligence Officer PW1 Sh. C.S.K. Singh has described the search and seizure proceedings that took place at the SC No. 22/2013 Page No. 14 of 24 NCB Vs. Nthabiseng Josephina Bulayi & ors.
airport, in detail. Infact as stated herein above the accused ladies in their statements u/s 313 CrPC have not questioned the recovery proceedings at the airport. The fact that after seizure, the case property was produced before the officer empowered u/s 53 of the NDPS Act, in compliance of provisions of Section 52 and 55 of the NDPS Act has been proved by PW4 Vikas Yadav. The deposition of PW3 Sanjeev Kumar makes it clear that samples drawn out from the recovered substance in the proper custody were taken to CRCL for examination. Nothing has emerged in the cross examination of the aforementioned witnesses which casts doubt on the veracity of their statements.
15. Section 54 of the NDPS Act makes it clear that in trials under this Act, it may be presumed, unless and until the contrary is proved that the accused has committed an offence under this Act in respect of substances, for the possession of which he fails to account satisfactorily. Now in the present case the prosecution has led sufficient evidence to show that the accused persons were found in possession of pseudoephedrine hydrochloride and that the same were being carried in their luggage. As stated herein above the fact of possession is not even denied by the accused persons. It also cannot be stated that the accused persons were not in conscious possession of the same for it is clear in the statements tendered by them u/s 313 CrPC that they had the control and custody of the bags in which the powder was being SC No. 22/2013 Page No. 15 of 24 NCB Vs. Nthabiseng Josephina Bulayi & ors.
transported. In such view of the matter it was upon the accused persons to have proved that they had not committed an offence of attempting to export pseudoephedrine hydrochloride outside India. The mere statement of accused persons that they did not have the knowledge about the nature of the substance being carried by them, in the considered opinion of this court is not sufficient to hold that they had no intention to commit the offence with which they have been charged with. On the contrary, their statements u/s 313 CrPC show that the they were aware that powder being transported and concealed in the bags handed over to them was being illegally exported outside India and they had agreed to export the said powder knowingly and had received money for the said illegal act. As narrated herein above in the said statements both the accused persons have stated before this Court that they were to be paid money for transporting the bags containing a chemical from India to South Africa. The fact that the accused persons have taken a defence that they did not have the knowledge that the chemical being exported by them was pseudoephedrine hydrochloride and that the export of the same is banned outside India is no defence. The fact that they knew that they were transporting some substance outside India illegally for consideration shows their state of mind and therefore it can be inferred that they had an intention of exporting some substance outside India illegally. Further the nature of the substance recovered from them has been proved to SC No. 22/2013 Page No. 16 of 24 NCB Vs. Nthabiseng Josephina Bulayi & ors.
be pseudoephedrine hydrochloride by the CRCL report. The report of the expert is not at all under question. Thus in the considered opinion of this Court the accused persons have been unable to rebut the presumption raised against them by virtue of Section 54 of the NDPS Act.
16. In view of the discussion herein above this court is of the considered opinion that the prosecution has been able to prove beyond reasonable doubt that both the accused persons had made an attempt to export outside India, pseudoephedrine hydrochloride, a controlled substance, in contravention of the orders issued by the Central Govt. u/s 9A of the NDPS Act. Thus both the accused are hereby held guilty of the offence punishable u/s 25A of the NDPS Act.
Announced in the open court on this 31st day of May, 2014 (Anu Grover Baliga) Special Judge, NDPS New Delhi SC No. 22/2013 Page No. 17 of 24 NCB Vs. Nthabiseng Josephina Bulayi & ors.
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE NDPS PATIALA HOUSE COURTS : NEW DELHI NCB vs. Nthabiseng Josephina Bulayi and ors.
SC No. 22/13ORDER ON SENTENCE Present: Sh. B.S. Arora, Ld. SPP for NCB.
Both convicts from JC.
Defence counsel Sh. T.K. Mahapatra 11 The case is today fixed for arguments on sentence to be imposed upon the convicts Ms. Nthabiseng Josephina Bulayi and Ms. Grace Bongiwe Makhaliphe. Vide judgment dated 31.05.2014, both the accused have been convicted of having contravened the provisions of section 9A of the NDPS Act by making an attempt to export pseudoephedrine hydrochloride outside India. Section 25A provides that a person found guilty of having contravened the provisions of section 9A of the NDPS Act shall be punishable with rigorous imprisonment for a term which may extend to 10 years and fine which may extend to Rs. 1 Lac. 11 Ld. SPP for NCB, Sh. B.S. Arora has mainly contended that the convicts in the present case should be imposed the maximum punishment i.e. 10 years with fine of Rs.1 lac and that they should not be shown any leniency. In support of his contentions, he has relied upon a judgment of SC No. 22/2013 Page No. 18 of 24 NCB Vs. Nthabiseng Josephina Bulayi & ors.
Hon'ble Supreme Court pronounced in a case titled and reported as Union of India Vs. Kuldeep Singh (2004) 2SCC 590.
11 On the other hand, Ld. Defence counsel Sh. T. K. Mahapatra has submitted that this court must take into account that these convicts have themselves admitted their mistake before this court at the stage of section 313 Cr.PC and according to Ld. Defence counsel the said statements reveal that it was only due to financial hardship that the accused persons got involved in the present case. It has also been submitted by the defence counsel that none of the convicts have any previous criminal antecedents and that the convicts are foreign nationals whose children have nobody to look after them for the last 10 months that the accused persons have been in custody in the present case. It is therefore being prayed that leniency be shown to the convicts. He has also contented that the judgment relied upon by the Ld. Counsel Sh. B.S. Arora is not applicable to the facts and circumstances of the present case. 11 I have given careful consideration to the submissions made by the Ld. Counsels and have gone through the judicial dicta referred to by Ld. Counsel Sh. Arora. In Kuldeep Singh's case (supra) 800 litres of Acetic Anhydride was recovered from the convict and the Hon'ble Supreme Court has observed that from the said amount of acetic anhydride, 300 SC No. 22/2013 Page No. 19 of 24 NCB Vs. Nthabiseng Josephina Bulayi & ors.
Kg of heroin would have been produced and that since the convict had himself admitted that he would have got about 40 Kg of heroin out of the same, the convict should not have been shown any leniency by the lower courts. In the considered opinion of this court, the said judgment of the Hon'ble Supreme Court cannot be relied upon by the prosecution to contend that the maximum sentence of imprisonment i.e. 10 years should be imposed upon the convicts Ms. Nthabiseng Josephina Bulayi and Ms. Grace Bongiwe Makhaliphe in the present case for only about 28.750 kg. and 20.900 Kg respectively of pseudoephedrine hydrochloride have been recovered from them and that though Sh. Arora has submitted that pseudoephedrine hydrochloride is used for the manufacture of amphetamine and methaqualone, there is no material placed before this court by the prosecution to show how much quantity of the said psychotropic substances would be produced from a mere 28.750 kg. and 20.900 Kg of pseudoephedrine hydrochloride. Further in the considered opinion of this court, in Kuldeep Singh's case it was the huge volume of acetic anhydride i.e. 800 litre from which 300 Kg of heroin was stated to be abstracted and the admission of the accused that he would have got 40 kg of heroin there from which led to the Hon'ble Supreme Court to impose the maximum sentence upon the accused before it. In the present case none of the convicts have made any admission whatsoever that they SC No. 22/2013 Page No. 20 of 24 NCB Vs. Nthabiseng Josephina Bulayi & ors.
were to get any amount of contraband from the pseudoephedrine hydrochloride being transported by them. The own case of the prosecution is that the accused persons were merely carriers and the statements tendered by them u/s 67 NDPS Act, relied upon by the prosecution itself show that the accused Ms. Nthabiseng Josephina Bulayi and Ms. Grace Bongiwe Makhaliphe would have been paid only 8500$ and 20,000 Rynds respectively for transportation of the said substance. Thus the accused in the present case are not the kingpins of drug trafficking which was the case before the Hon'ble Supreme Court in Kuldeep Singh's case and therefore in the considered opinion of this court, the dicta pronounced in the said case cannot be mechanically applied in the present case. Dealing with the issue of sentencing, the Hon'ble Supreme Court in another case titled and reported as Karamjeet Singh Vs. State (Delhi Admn.) (2001) 9SCC 161 has made the following observations:
Punishment in criminal cases is both punitive and reformative. The purpose is that the person found guilty of committing the offence is made to realise his fault and is deterred from repeating such acts in future. The reformative aspect is meant to enable the person concerned to relent and repent for his action and make himself acceptable to the society as a useful social being. In determining the question of SC No. 22/2013 Page No. 21 of 24 NCB Vs. Nthabiseng Josephina Bulayi & ors.
proper punishment in a criminal case, the court has to weigh the degree of culpability of the accused, its effect on others and the desirability of showing any leniency in the matter of punishment in the case. An act of balancing is, what is needed in such a case; a balance between the interest of the individual and the concern of the society; weighing the one against the other. Imposing a hard punishment on the accused serves a limited purpose but at the same time, it is to be kept in mind that relevance of deterrent punishment in matters of serious crimes affecting society should not be undermined. Within the parameters of the law an attempt has to be made to afford an opportunity to the individual to reform himself and lead the life of a normal, useful member of society and make his contribution in that regard. Denying such opportunity to a person who has been found to have committed offence in the facts and circumstances placed on record would only have a hardening attitude towards his fellow beings and towards society at large. Such a situation, has to be avoided, again within the permissible limits of law.
11 The aforementioned judicial dicta therefore makes it clear that the sole purpose of punishing an offender is not retribution alone and that the courts while sentencing an offender must make an attempt, within the parameters of the law, to afford an opportunity to the offender to reform SC No. 22/2013 Page No. 22 of 24 NCB Vs. Nthabiseng Josephina Bulayi & ors.
himself and lead the life of a normal, useful member of society. In the present case, the convicts have no previous criminal antecedents and it does appear from the totality of the attendant circumstances and material on record that they are not at all hardened criminals but were forced due to their economic conditions to indulge in the illegal trafficking of controlled substance. No doubt poverty is not a justification for commission of crimes but in the considered opinion of this court, imposing a harsh sentence will also not subserve the interests of justice. As narrated in the judgment both the convicts had themselves admitted at the stage of 313 Cr.PC that they were found in possession of pseudoephedrine hydrochloride and that they were making an attempt to transport the same at the behest of some other persons who had promised to pay them money for the said act and that the convicts due to their financial hardships had agreed to become the carriers. Both the convicts have young children to look after and it is also to be borne in mind that the convicts are women. Thus taking into consideration the nature of offence, social and economic status of both the convicts and the reasons for which they appear to have committed the offence, this court, hereby imposes a sentence of one year of rigorous imprisonment and a fine of Rs.75,000/ on both the convicts for having committed the offence punishable u/s 25A of the NDPS Act. In default of payment of fine, the SC No. 22/2013 Page No. 23 of 24 NCB Vs. Nthabiseng Josephina Bulayi & ors.
convicts will have to undergo further simple imprisonment for a period of 2 months. Both the convicts are to be granted the benefit of section 428 of Cr.PC. Copy of the judgment and this order of sentence be given to convicts free of cost, today itself and a copy thereof be also sent to the Jail Superintendent, Tihar Jail. It is made clear that case property stands confiscated to the NCB and that they will be at liberty to dispose the same as per the prescribed rules after the expiry of period of appeal/revision. This file be now consigned to record room. Announced in the open Court on this 04th day of June, 2014 (Anu Grover Baliga) Special Judge: NDPS New Delhi SC No. 22/2013 Page No. 24 of 24