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TMI Blog2017 (11) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere 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 puni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst 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 whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per 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' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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