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Mrs. Govindraj Amutha Versus Customs

2015 (8) TMI 580 - DELHI HIGH COURT

Validity/Tenability of conviction order – Plea of Guilt – Petitioner questions validity and tenability of judgment and order of conviction whereby she was convicted under Sections of NDPS Act, 1985 and was sentenced to undergo Rigorous imprisonment with fine – Trial Court accepted statement of petitioner as acceptance of guilt and held that no appeal could have been filed except for legality/severity of sentence – Held that:- Section 229 of CrCP provides that if accused pleads guilty, Judge shal .....

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tatement of petitioner as her acceptance of guilt – Rule is that when accused is on his trial on capital charge, it is not expedient that court should convict him even upon plea of guilty – Therefore Trial Court adopted erroneous approach in accepting plea of guilt of petitioner –Since statement of petitioner was actuated by misconception, it ought not to be treated as plea of guilt – matter remanded back to trial court for afresh consideration of evidences on record – Decided in favour of Petit .....

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NDPS, Dwarka Courts, New Delhi in S.C No.4/3/13 whereby she has been convicted under Sections 22/23 read with Section 28 of the NDPS Act, 1985 and has been sentenced to undergo Rigorous imprisonment for 10 years, fine of ₹ 1 lakh and in default of payment of such fine, simple imprisonment for six months for the offence under Section 22 read with Section 28 of the NDPS Act, 1985 and rigorous imprisonment for 10 years, fine of ₹ 1 lakh (in default simple imprisonment for six months) f .....

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application of mind or following the requirements of law for convicting a person in a sessions triable case. The further ground of challenge is that the petitioner was not afforded the facility of a translator even though she did not understand the language in which the evidence was recorded. 3. Since the Trial Court accepted the statement of the petitioner as an acceptance of guilt, no appeal could have been filed except for the legality/severity of the sentence. 4. Hence the present petition. .....

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e crystal powder like substance weighing 4.915 kgs was found in the baggage of the petitioner. Two samples of 5 gram each were taken out from the said powder like substance and were marked subsequently. The petitioner was also in possession of mattresses in which also narcotic substance was found to be concealed. A total of 9.720 kgs of the narcotic substance was recovered. In her statement under Section 67 of the NDPS Act, 1985, the petitioner disclosed that the substance in question was being .....

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eproduced hereunder:- CHARGE I, S.C. Rajan, Additional Sessions Judge/Special Judge (NDPS), Dwarka Courts, New Delhi do hereby charge you Govind Raj Amutha w/o Sh.Kosi Mani, r/o 1/2, Paugai, Darasukam, Kumbakonam, Tamil Nadu, as under: That on 01.02.2013, you were intercepted at IGI Airport while you were going to Malaysia by flight no.MH 0191 and you were found in possession of 9.720 kg.ketamine from your baggage. You also entered into a criminal conspiracy with one Abrahim for possessing, expo .....

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ASJ/Spl.Judge (NDPS) Dwarka/New Delhi 29.4.2013 RO&AC G.AMUTHA 9. It has been submitted on behalf of the petitioner that on 5.6.2013, 21.8.2013, 28.11.2013, 12.2.2014, 16.4.2014 and 14.8.2014 the counsel for the petitioner did not appear. As a result thereof some of the witnesses could not be cross examined. 10. On 25.4.2014, the petitioner expressed her inability to afford a counsel and a legal aid counsel was provided to her. The legal aid counsel also failed to appear in the Court on 16. .....

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w:- 1) That I, Govindraj Amutha, w/o Sh.Kosimani was arrested on February 1, 2013 by Custom officials at IGI Airport with 9.720 kgs. Ketamine. 2) That I am married with 2 children all boys. Being a mother I am worried about my children although they are major but since I came inside I have no idea of their whereabouts. Also children of their age are the most vulnerable targets of social evils. 3) That being a mother, my motherly instincts and separating from children have now affected my mental .....

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one in custody. Such misconception was further buttressed by the fact that in a similar case where an accused pleaded guilty of carrying a controlled substance namely Ephedrine Hydrochloride was sentenced to a period of 15 months which he had already undergone. 14. From the Trial Court judgment it appears that after the examination of PW.6 on 19.9.2014, the petitioner had filed an application pleading her guilt. Since the petitioner could understand and comprehend Tamil language only, one Tamil .....

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D/o Govindraj r/o Padugai Darasukam Kumbakonam, Tamil Nadu. Without Oath I am the accused in the present case filed by Customs against me. On 01.02.2013 I was apprehended by the customs authorities when I was going to Malaysia from IGI Airport New Delhi from Flight No.MH 0191. During examination of my bag 9.720 kgs ketamine was recovered and since then I am languishing in jail and facing trial and my application in this respect filed by my Ld. Counsel is Ex.P1 bears my signatures at point A and .....

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after the Trial Court, accepting the plea of guilt of the petitioner namely her carrying 9.720 kgs of Ketamine Hydrochloride, convicted her under Sections 22/23 read with Section 28 of the NDPS Act, 1985 and sentenced her to undergo RI for 10 years under both counts, fine of ₹ 1 lakh under each head with the default stipulation. 17. The Trial Court judgment evinces complete non application of mind after such a plea of guilt was made by the petitioner. 18. Section 229 of the Code of Crimina .....

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It is precisely for this reason that the Courts in India do not accept such pleas of guilt and proceed to take evidence in such cases. This practice of not accepting plea of guilt in certain circumstances is highly preferable lest the evidence which may be taken in the case might disclose that no offence was committed by the accused. The Trial Court misdirected himself in acting upon the plea of guilt in a serious case of Narcotic Drugs and Psychotropic Substances Act. The Trial Court ought to h .....

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y. A joint reading of Sections 229 and 230 of the Code of Criminal Procedure further makes it clear that if an accused claims to be tried and pleads not guilty, date would be fixed by the Trial Court for examination of witnesses. 20. In the case in hand the Trial Court ought to have appreciated that the petitioner was a daily wage coolie with two sons to fend for. Admittedly, the petitioner was not well versed either in Hindi or English, the language used in the Court. Till the time when the app .....

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dgment is very instructive and are reproduced hereunder:- 8. There is another aspect of the matter which is also of considering importance. It has been settled by a catena of decisions not to act upon a plea of guilty in case of serious offences like murder. A layman accused when he pleads guilty is likely to be more concerned with the physical act and not advert to the various ingredients constituting the offence. Whether the acts constitute murder is a mixed questions of law and fact. To a com .....

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evidence be placed before the court. 9. The principle that in a serious case a finding of conviction should not be recorded on the plea of guilty, was stated a century ago by this court in Queen Empress v. Bhadu ILR(1896) All 120 in the following words: In this country it is dangerous to assume that a prisoner of this class understands what are the ingredients of the offence under Section 302 of the Indian Penal Code, and what are the matters which might reduce the act committed, to an offence u .....

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y or unreliability of that evidence. Again in Dalli v. Emperor MANU/UP/0325/1922: AIR 1922 All 233(1) it was held as follows: In a case of murder it has long been the practice not to accept the plea of guilty. After all murder is a mixed question of fact and law and unless the court is perfectly satisfied that the accused knew exactly what was necessarily implied by his plea of guilty, the case should be tried. In Mst. Shukia v. Emperor AIR 1992 All 266 it was held as follows: The Rule is that w .....

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Calcutta High court as early as in the year 1885 in Netai Lusker v. Queen Empress ILR Cal 410 and by Bombay High court in Emperor v. Chinia Bhika Koli (1906) Cri LJ 337. 10. Almost all the High Courts of the country have taken the view that the court should not act upon the plea of guilty in serious offences but should proceed to take the evidence as if the plea had been one of not guilty and should decide the case upon the whole evidence including the accused plea. We do not consider it necessa .....

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n section 374, where an accused person has pleaded guilty and has been convicted on such plea, there shall be no appeal,- (a) if the conviction is by a High Court; or (b) if the conviction is by a Court of Session, Metropolitan Magistrate or Magistrate of the first or second class, except as to the extent or legality of the sentence. 24. Normally the plea of guilt would be regarded as a waiver of the right of appeal except as to the severity or the legality of the sentence. In the present case, .....

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