2016 (12) TMI 1742 - HC - Indian Laws

Smuggling - Heroin - Acquittal of Offences - the case of the prosecution is based upon depositions of official witnesses only with no independent witness coming forward to support the prosecution story. Therefore the prosecution case is rendered doubtful and giving benefit of doubt to the accused they should be acquitted of the charges framed against them - Held that - Though the case of prosecution is based upon deposition of official witnesses but since no previous enmity is alleged or proved between the accused and such official witnesses their testimonies cannot be discarded for such reason. It needs to be mentioned here that at the time of recovery two independent witnesses namely Shri Parteek Kapoor and Shri Balbir Ram had been associated but they were not examined by the prosecution during the trial. It needs to be mentioned here that the prosecution is not required to examine each and every witness cited by it in the list of witnesses and non-examining of independent witness does not affect the case of the prosecution adversely. Therefore the statements of official witnesses in the absence of independent corroboration can certainly be relied upon. The prosecution has successfully proved its charge against the accused conclusively and affirmatively by leading sufficient cogent convincing reliable ocular and documentary evidence therefore there is no question of accused being involved in this ease falsely. In the instant case though Section 50 of the NDPS Act is not applicable since recovery was not effected from personal search of accused but even then the officers of DRI had served both the accused with notice under Section 50 of the NDPS Act and the accused had given their option that their personal search and search of the car might be conducted in the presence of Gazetted Officer. Shri SJS Chugh being Gazetted Officer was there and search of both the accused and that of the car was conducted in his presence. Therefore there was no violation of Section 50 of the NDPS Act in this case. The accused-convicts can be granted certain concession in that regard keeping in view the facts and circumstances of the case and considering that no previous conviction is alleged or proved against the accused they are stated to be only earning member of their family and they are behind the bars for several years - appeal disposed off.

Summary

Issues:
- Conviction and sentencing of the accused under the NDPS Act
- Allegations of false recovery and lack of independent witnesses
- Compliance with mandatory provisions of the Act during arrest and recovery
- Abetment under Section 29 of the NDPS Act
- Applicability of Section 42 of the NDPS Act
- Reduction of sentence for the accused

Conviction and Sentencing:
The judgment addressed two criminal appeals filed by the accused challenging their conviction and sentencing under the NDPS Act. The accused sought acquittal of the charges framed against them. The trial court had convicted and sentenced the accused to rigorous imprisonment for 12 years and a fine of Rs. 1 lac each for possession of heroin. The judgment maintained the conviction but reduced the sentence to 10 years of rigorous imprisonment and a fine of Rs. 1 lac each, considering the circumstances.

Allegations of False Recovery and Lack of Independent Witnesses:
The defense argued that no recovery was made from the accused and that the prosecution's case relied solely on official witnesses without independent corroboration. However, the judgment emphasized that the testimonies of official witnesses were reliable, and the absence of independent witnesses did not weaken the prosecution's case. The court found no merit in the defense's contention and upheld the conviction based on sufficient evidence.

Compliance with Mandatory Provisions:
The defense claimed violations of mandatory provisions during the arrest and recovery process, casting doubt on the validity of the recovery. However, the judgment clarified that the officers had followed proper procedures, including serving notice under Section 50 of the NDPS Act and conducting searches in the presence of a Gazetted Officer. The recovery from the accused's car indicated their conscious possession of the contraband.

Abetment under Section 29 and Applicability of Section 42:
The judgment established the offense of abetment under Section 29 of the NDPS Act against one of the accused, supported by evidence and statements from other accused individuals. The court deemed the statements admissible as evidence, and non-compliance with Section 42 of the NDPS Act did not affect the trial's validity in the absence of prejudice to the accused.

Reduction of Sentence:
While maintaining the conviction, the judgment reduced the sentence for all accused individuals to 10 years of rigorous imprisonment and a fine of Rs. 1 lac each, considering factors such as being the sole breadwinners of their families and their time spent in custody. The modification in the sentence led to the disposal of both appeals.

This comprehensive analysis of the judgment highlights the key issues addressed by the court, including the conviction, compliance with legal provisions, and the reduction of the accused's sentences based on the circumstances of the case.