9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (1) TMI 933 - HC - CustomsConviction under Section 20(B)(II)(C) N.D.P.S. Act - Sentence of rigorous imprisonment for 15 years with fine of ₹ 1 lac. In default of payment of fine each of accused appellant has been ordered to undergo further rigorous imprisonment for 1 1/2 years - Recovery of charas and ganja in huge quantity - Held that - Perusal of statements of accused-appellants Anil Kumar Jaiswal and Jagram recorded under Section 313 Cr.P.C. shows that they have admitted arrest by party of Customs and Excise Department at the time and place alleged by prosecution and this fact has been supported by statement of D.W. 1 Ram Chandra Yadav. According to accused-appellants as well as their witness D.W. 1 Ram Chandra Yadav, accused-appellants Anil Kumar Jaiswal and Jagram were not with car. They were going to their shop. In the way where Ambassdor car was standing, Officers of Customs and Excise Department asked them to become witnesses but they declined to become witnesses, thereafter, accused-appellants were brought with car to office of Customs and Excise Department and were forced to sign false statement and have been falsely implicated. Neither accused-appellants have stated in their statement under Section 313 Cr.P.C. nor their witness D.W. 1 Ram Chandra Yadav has stated that no narcotic drug was recovered from the car standing on the spot. Accused-appellants have not stated in their statements under Section 313 Cr.P.C. that false recovery of Charas and Ganja have been planted by officers of Customs and Excise Department. No suggestion has been given to prosecution witnesses on behalf of defence that the recovery of Charas and Ganja has been planted by the departmental officer. - prosecution has fully proved the arrest of accused-appellants on spot along with Ambassdor car having Charas and Ganja in it. Therefore, in view of above pronouncement of Hon'ble Apex Court rendered in the case of Khet Singh Vs. Union of India (supra), the preparation of recovery memo in the office of department is not fatal for prosecution case. In this context, it is relevant to mention that after recovery of narcotics drugs in such a huge quantity, the preparation of recovery memo on road appears quite inconvenient. Recovery of Charas and Ganja is alleged to have been made on 25.8.1988. The case property has been produced before trial court during examination of P.W. 3, Ramesh Chandra Shukla on 25.4.2003 after lapse of 15 years. Therefore,due to lapse of such a long time the seals and slips as well as signatures might have been damaged, destroyed or defaced. - it is also relevant to mention that in crossexamination, P.W. 3 Ramesh Chandra Shukla has not been given any suggestion on behalf of defence to the effect that the case property produced before trial court is not the case property related to this case. It is also relevant to mention that the accusedappellants have stated that they have been falsely implicated but they have not denied recovery of Charas and Ganja from car as alleged by prosecution. - Therefore, considering all facts and circumstances of the case as well as evidence on record, I am of the view that the prosecution case may not be disbelieved merely on the ground that the case property brought before trial court was not in a good condition. Perusal of recovery memo as well as statements of witnesses examined by prosecution shows that Charas has been recovered in two bags kept on back seat of car and Ganja has been recovered from the dicky of the car kept in packets and small bag. - Perusal of recovery memo as well as statement of witness examined by prosecution shows that the car was in possession of accused-appellants as well as deceased co-accused Ram Chandra Yadav. The alleged recovery of Charas and Ganja has been made on 25.8.1988 and statement of P.Ws. has been recorded before trial court in year, 2003 after lapse of 15 years. Therefore, due to lapse of such a long time. The memory regarding incident may not remain fresh. Therefore, there may be some variation in the statement of witnesses but after having gone through whole statements of witnesses examined by prosecution, it is apparent that there is no material contradiction in their statements and there is no sufficient ground to disbelieve their testimonies. - In the statements recorded under Section 313 Cr.P.C. accused-appellants have stated that after having assaulted, their statements have been taken and forged documents have been prepared. Perusal of records shows that before statements of accused-appellants recorded under Section 313 Cr.P.C. no complaint has been made by accused-appellants either before remanding Magistrate or trial court or any other authority alleging that accused have been forced to give false statements Considering whole facts and circumstances of the case as well as evidence on record, I am of the view that the conviction recorded by trial court against accused-appellants is in accordance with law and evidence. The trial court has considered whole evidence and all points relevant for determination of the case. The conclusion drawn by trial court is based on judicious analysis of evidence and is accordance with law. - Considering quantity of Charas and Ganja alleged to have been recovered from the possession of accused-appellants as well as facts and circumstances of the case, I am of the view that sentence awarded by trial court to accused-appellants is not excesive. - there is no sufficient ground for interference in the impugned judgement and order passed by trial court. - Decided against appellants.
Issues Involved:
1. Compliance with Sections 42 and 50 of the N.D.P.S. Act. 2. Validity of the recovery process. 3. Credibility of the prosecution witnesses. 4. Admissibility of confessional statements under Section 67 of the N.D.P.S. Act. 5. Adequacy of evidence and sentencing. Issue-wise Detailed Analysis: 1. Compliance with Sections 42 and 50 of the N.D.P.S. Act: The appellants contended that the mandatory provisions of Sections 42 and 50 of the N.D.P.S. Act were not complied with, rendering the recovery vitiated. The court examined the applicability of these sections and concluded that Section 50, which deals with the search of a person, was not applicable as the recovery was made from a car. The court relied on several judicial pronouncements, including the case of *State of Haryana Vs. Jarnail Singh and others*, which differentiated between searches in public places under Section 43 and searches in buildings or enclosed places under Section 42. The court found that the search was conducted in compliance with directions from superior officers and thus, Section 42 was also not applicable. 2. Validity of the Recovery Process: The appellants argued that the recovery memo was not prepared at the spot but in the office, which they claimed vitiated the recovery process. The court referred to the case of *Khet Singh Vs. Union of India*, where the Supreme Court held that the preparation of the recovery memo in the office, while the accused were present, did not invalidate the recovery. The court noted that the accused admitted to being apprehended by the Customs and Excise Department at the alleged time and place, and there was no suggestion that the narcotic drugs were planted. 3. Credibility of the Prosecution Witnesses: The court evaluated the testimonies of P.W. 1, Moris William Henari; P.W. 2, J.S. Saxena; and P.W. 3, Ramesh Chandra Shukla, who were involved in the recovery and arrest. The court found their statements consistent and credible. The appellants' defense, including the testimony of D.W. 1, Ram Chandra Yadav, was deemed insufficient to discredit the prosecution witnesses. The court noted that no complaint of false implication was made by the appellants before any authority, including the remanding magistrate. 4. Admissibility of Confessional Statements under Section 67 of the N.D.P.S. Act: The appellants contended that their confessional statements were obtained under duress. The court referred to the Supreme Court judgments in *M. Prabhulal v. Directorate of Revenue Intelligence* and *Ram Singh Vs. Central Bureau of Narcotics*, which upheld the admissibility of confessional statements under Section 67 if made voluntarily. The court observed that the appellants did not complain of any torture or harassment before the magistrate or any other authority before their statements under Section 313 Cr.P.C. were recorded, thus deeming the confessions voluntary and admissible. 5. Adequacy of Evidence and Sentencing: The court found that the prosecution had sufficiently proven the recovery of 8.800 kgs of Charas and 115.750 kgs of Ganja from the appellants' possession. The court dismissed the appellants' argument that the narcotics were not produced before the trial court, noting that the case property was identified by P.W. 3 during his testimony. The court also addressed the appellants' reliance on various judicial pronouncements, distinguishing the facts of the present case from those cited. The court concluded that the trial court's judgment was based on a judicious analysis of evidence and upheld the 15-year rigorous imprisonment and fine of Rs. 1 lakh imposed on each appellant. Conclusion: The appeal was dismissed, and the trial court's judgment and sentence were upheld. The court directed the office to send a copy of the judgment to the trial court for information and necessary action, and to return the trial court record immediately.
|
