2012 (10) TMI 996 - SC - Customs

Punishment for contravention in relation to poppy straw Appeal against conviction Appellant was convicted under Section 15 of NDPS Act and sentenced him to undergo rigorous imprisonment (RI) alongwith fine High court also affirmed conviction order by rejecting appeal of appellant Held that - true that independent witness was not examined on side of prosecution In order to substantiate its claim, prosecution examined PW-1, PW-2, PW-3 and PW-6 It is better if prosecution examines at least one independent witness to corroborate its case but in absence of any animosity between accused and official witnesses, there is nothing wrong in relying on their testimonies and accepting documents placed for basing conviction No animosity established on part of official witnesses by accused in defence and no infirmity in prosecution case True that Section 15 of NDPS Act speaks about punishment for contravention in relation to poppy straw As per sub-section (b) where contravention involves quantity lesser than commercial quantity but greater than small quantity, rigorous imprisonment may extend to 10 years and with fine which may extend to one lakh rupees Even after taking two samples of 250 grams each, quantity measured comes to 69.50 kgs which is more than commercial quantity Taking note of all materials, court in entire agreement with conclusion arrived at by trial Court and affirmed by High Court Decided against Appellant.

Summary

Issues:
1. Examination of independent witness Kaur Singh.
2. Mixing of contraband found in two bags.

Analysis:

Issue 1: Examination of independent witness Kaur Singh
The case involved the prosecution of the appellant for possession of contraband under the NDPS Act. The appellant contended that the prosecution's failure to examine an independent witness, Kaur Singh, raised doubts about the prosecution's case. The prosecution argued that Kaur Singh's presence was natural at the time of seizure and that despite issuing summons, he did not appear for examination. The court noted that the prosecution had official witnesses and documents supporting the case, including the FIR, seizure memo, and FSL report. The court found that while it is preferable to have independent witnesses, in the absence of animosity between the accused and official witnesses, reliance on their testimonies is permissible. The court upheld the conviction based on the evidence of official witnesses and rejected the appellant's contention regarding the non-examination of Kaur Singh.

Issue 2: Mixing of contraband found in two bags
The appellant also raised an issue regarding the mixing of contraband found in two bags before taking samples. The appellant argued that this constituted an irregularity and affected his interests. However, the court disagreed with this contention, stating that the quantity of contraband found exceeded the commercial quantity specified under the NDPS Act. The court explained the different punishments prescribed based on the quantity of contraband and concluded that mixing the contraband did not prejudice the appellant. The court upheld the sentence imposed by the Special Judge, considering the possession of a commercial quantity of contraband. Ultimately, the court found no merit in the appeals and dismissed them based on the evidence presented and the provisions of the NDPS Act.

This comprehensive analysis of the judgment addresses the issues raised by the appellant, the arguments presented by both parties, and the court's reasoning leading to the dismissal of the appeals.