2003 (2) TMI 487 - HC - Customs

Summary

Issues Involved:
1. Compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act).
2. Mention of independent witnesses in the initial ruqqa.
3. Production of the secret informer in court.
4. Compliance with Sections 42 and 52A(2) of the NDPS Act.
5. Quantum of sentence.

Issue-wise Detailed Analysis:

1. Compliance with Section 50 of the NDPS Act:
The appellant argued that there was no compliance with Section 50 of the NDPS Act as the offer made to him was partial, only mentioning a Gazetted Officer and not a Magistrate. The court found this argument unconvincing because the recovery was from the appellant's briefcase, not his person. Therefore, compliance with Section 50 was deemed unnecessary. The court cited the judgment in *State of Punjab v. Baldev Singh* and *Kalema Tumba v. State of Maharashtra* to support this view.

2. Mention of Independent Witnesses in the Initial Ruqqa:
The appellant contended that the names of independent witnesses were not mentioned in the initial ruqqa (Exhibit PA/1). The court held that this omission did not adversely affect the prosecution's case. The ruqqa was a simple intimation sent to the SHO about the receipt of secret information and was not the basis for the FIR. The formal FIR was registered based on a subsequent ruqqa (Exhibit PE). The court found no requirement in law to mention the names of independent witnesses in the ruqqa.

3. Production of the Secret Informer in Court:
The appellant argued that the prosecution should have produced the secret informer in court. The court dismissed this argument, stating that there is no legal requirement to produce the secret informer during the trial. The prosecution is not obligated to disclose the name of the secret informant in any document sent for the registration of the FIR.

4. Compliance with Sections 42 and 52A(2) of the NDPS Act:
The appellant claimed non-compliance with Section 42, which requires secret information to be reduced to writing. The court found that the secret information was indeed reduced to writing (Exhibit PA) and sent to the SHO, fulfilling the requirement. Regarding Section 52A(2), which pertains to the disposal of seized property, the court noted that it comes into play only after recovery and is directory, not mandatory. The court cited *Amarjit Kaur v. State of Haryana* to support this interpretation.

5. Quantum of Sentence:
The appellant argued that the sentence was too stringent. The court acknowledged that the appellant had been in custody since 1998, was not a previous convict, and had suffered a protracted trial. Considering these factors, the court reduced the substantive sentence from fifteen years to twelve years but maintained the fine of Rs. one lac, as it is the minimum required by law.

Conclusion:
The court found no infirmity in the conviction and upheld it. However, it reduced the substantive sentence to twelve years, maintaining the fine. The appeal was dismissed with this modification in the quantum of sentence.