2013 (7) TMI 608 - HC - Customs

Appeal against conviction - appellants were convicted for the offences punishable u/s 21, 23 & 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 and sentenced to rigorous imprisonment and fine Held that - The appellants should be sentenced to the same sentence as was imposed - appellant and her sister were convicted for the offences punishable u/s 21 & 23 and sentenced to undergo rigorous imprisonment for a period of ten and half years and to pay a fine on both counts - the appellants herein had been convicted for the offence punishable u/s 21, 23 & 29 - but in respect of much larger quantity of heroin Appellants had brought heroin to India for sale - such sale necessarily required to be carried out with the assistance of an Indian National and such support system was provided by appellant the recovery of contraband is not necessary for an offence punishable u/s 29 court mentioned the judgement of Pavunny Vs. Assistant Collector (1997 (2) TMI 97 - SUPREME COURT OF INDIA)for explaining as to what evidences required to prove a guilt - Section 29 contemplates that whoever abets or is a party to a criminal conspiracy to commit an offence punishable under Chapter IV - then notwithstanding anything contained in Section 116 of the IPC such person shall be punishable with the punishment provided for the offence decided against appellant.

Issues Involved:
1. Conviction and sentencing under the Narcotic Drugs & Psychotropic Substances Act, 1985.
2. Validity of statements recorded under Section 67 of the Act and Section 108 of the Customs Act.
3. Retracted statements and their impact.
4. Conviction of appellant No.3 under Section 29 of the Act without recovery of contraband.
5. Comparison of sentencing with a similar case (CRA No.11-DB of 2010).

Issue-wise Detailed Analysis:

1. Conviction and Sentencing under the Narcotic Drugs & Psychotropic Substances Act, 1985:
The appellants were convicted for offences under Sections 21, 23, and 29 of the Act. Appellants Mohammad Rashad and Nasreen Akhtar were sentenced to 15 years of rigorous imprisonment and a fine of Rs.1,50,000/- each, while appellant Jamir @ Manu was sentenced to 15 years of rigorous imprisonment and a fine of Rs.1,50,000/- under Section 29 of the Act. In default of payment, an additional one-year rigorous imprisonment was imposed.

2. Validity of Statements Recorded under Section 67 of the Act and Section 108 of the Customs Act:
The prosecution presented evidence that the appellants' statements were recorded under Section 67 of the Act and Section 108 of the Customs Act without any threat or coercion. PW-1, Rajesh Sarswat, and other witnesses testified that due caution was given to the accused before recording their statements, and no pressure was applied. The statements were found to be voluntary and were corroborated by other evidence, including the recovery of heroin from the appellants.

3. Retracted Statements and Their Impact:
The appellants argued that they retracted their statements at the earliest opportunity, claiming they were recorded under duress. However, the court found no merit in this argument, noting that no immediate grievance was made when the appellants were produced before the Magistrate. The retraction was considered an afterthought, as the allegations of coercion were general and not substantiated by specific evidence. The Supreme Court's judgment in Pavunny Vs. Assistant Collector (1997) was cited, emphasizing that the burden is on the accused to prove that the statement was obtained by threat or duress.

4. Conviction of Appellant No.3 under Section 29 of the Act without Recovery of Contraband:
Appellant No.3, Jamir @ Manu, was convicted under Section 29 of the Act, which deals with abetment and conspiracy. Although no contraband was recovered from him, his involvement was established through the statements of co-accused and corroborated by passport entries. The court held that for an offence under Section 29, the recovery of contraband is not necessary. Jamir's role in facilitating the sale of heroin brought by the other appellants was sufficient for his conviction.

5. Comparison of Sentencing with a Similar Case (CRA No.11-DB of 2010):
The appellants' counsel argued for a reduction in sentence by comparing it with a similar case (CRA No.11-DB of 2010), where the convicts were sentenced to ten and a half years of rigorous imprisonment and a fine of Rs.1 lac each. The court agreed to modify the sentence, reducing it to ten and a half years of rigorous imprisonment and a fine of Rs.1 lac on each count, with an additional one-year imprisonment in default of payment.

Conclusion:
The appeal was disposed of with a modification in the sentence, reducing it to ten and a half years of rigorous imprisonment and a fine of Rs.1 lac on each count, maintaining the conviction of the appellants.

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