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Shatrughan Pandey Versus Union of India Thru' Inspector Custom

2017 (11) TMI 161 - ALLAHABAD HIGH COURT

Offence under NDPS Act - Held that:- The trial Court has imposed punishment of 13 years rigorous imprisonment and fine of ₹ 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 mean .....

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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 .....

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n jail, he shall be set at liberty in this case forthwith, if not required in any other case. - Criminal Appeal No. 7568 of 2008 - Dated:- 1-11-2017 - Hon'ble Dinesh Kumar Singh-I, J. For the Appellant : Tripathi B.G. Bhai,Dinesh Chandra Mishra For the Respondent : B.K. Singh Raghuvanshi,A.G.A.,Sanjay K Singh ORDER 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 imprison .....

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uted 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 beari .....

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n 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 ₹ 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 a .....

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ere 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 .....

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ka, 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 Gaz .....

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ighing, the remaining Ganja of 10 packets was found to be 141 Kgs. valuing ₹ 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 reco .....

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oken 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 .....

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pany 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 o .....

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eby 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 ND .....

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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 .....

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tion 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 .....

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missioner 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 alle .....

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tal, 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 r .....

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th 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 b .....

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ought 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 .....

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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 Su .....

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06. 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, whethe .....

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-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 .....

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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 Cour .....

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. 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 indepe .....

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covery 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 .....

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nesses 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 Officer .....

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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 .....

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ssing 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 .....

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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. T .....

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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 .....

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rtment. 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 S .....

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elf 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 .....

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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, ser .....

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s 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 impris .....

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