2017 (5) TMI 686 - HC - Indian Laws

Offence punishable under Section 18 of The Narcotic Drugs and Psychotropic Substances Act, 1985 - leniency in the matter of sentence - Held that - From the statements of the accused-appellants recorded by the learned Judge, Special Court, Panipat on the quantum of sentence, it comes out that all of them have responsibilities towards their family members. The custody certificates produced by the learned State counsel show that none of the appellant was earlier convicted under any of the provisions of the NDPS Act. Accused-appellant Balbir has already undergone the actual sentence of seven years ten months and ten days and after adding remission, he has undergone total sentence for a period of eight years ten months and ten days. Accused-appellant-Tirlok has also remained in custody for actual period of seven years ten months and ten days and after adding remission, he has undergone total sentence of eight years ten months and ten days. Similarly, appellant-Kuldeep has actually undergone seven years ten months and ten days in jail and after adding remission, he has also undergone total sentence of eight years ten months and ten days. Appellant- Wardi Chand has not earned any remission and has undergone total sentence for a period of eight years one month and four days. Thus, all the appellants have already undergone a substantial period in jail. In view of the facts and circumstances of the case, they certainly deserves leniency in the matter of sentence. As we do not find any legal infirmity in the conviction of the appellants recorded by the learned Judge, Special Court, Panipat. Thus, the conviction of the appellants recorded by the learned Judge, Special Court, Panipat for the offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is upheld and appeal against conviction stands dismissed. However, the order on the quantum of sentence dated 15.01.2011 is hereby modified. Appellants Wardi Chand, Balbir, Tirlok and Kuldeep are sentenced to undergo rigorous imprisonment for a period of ten years and also ordered to pay a fine of ₹ 1 lac each and in default thereof, they will further undergo imprisonment for a period of one year.

Issues Involved:
1. Compliance with Section 42 of the NDPS Act.
2. Validity of the secret information and its communication.
3. Discrepancies in sample handling and weight.
4. Credibility of prosecution witnesses and evidence.
5. Non-joining of independent witnesses.
6. Sentencing of the appellants.

Issue-wise Detailed Analysis:

1. Compliance with Section 42 of the NDPS Act:
The appellants contended that the Investigating Officer did not comply with the mandatory provisions of Section 42 of the NDPS Act, which requires obtaining a search warrant or authorization for a search based on secret information. The court found this argument without merit, as the Investigating Officer immediately recorded the secret information in the Daily Dairy Register (DDR) and forwarded a copy to DSP Randhir Singh, fulfilling the requirements of Section 42 (2) of the NDPS Act. The DSP, being an empowered officer under Section 41 (2) of the NDPS Act, gave written authorization to the Investigating Officer to conduct the search, thereby complying with the provisions of Section 42.

2. Validity of the Secret Information and its Communication:
The appellants argued that the secret information was implausible and that the prosecution failed to examine EHC Raj Kumar, who conveyed the information to DSP Randhir Singh. The court noted that the compliance with Section 42 (2) was established through the testimonies of the Investigating Officer and DSP Randhir Singh, who confirmed the receipt and forwarding of the secret information. The court found no discrepancy in the recorded secret information and the information sent to DSP Randhir Singh.

3. Discrepancies in Sample Handling and Weight:
The appellants pointed out discrepancies in the handling and weight of the samples, noting differences between the prosecution's description and the FSL report. The court acknowledged the differences in weight but attributed them to the use of different weighing scales (pen type vs. digital). The court emphasized that the seals on the sample parcels were intact throughout the process, as confirmed by multiple witnesses and the FSL report, ruling out tampering.

4. Credibility of Prosecution Witnesses and Evidence:
The appellants challenged the credibility of the prosecution witnesses, citing contradictions in their testimonies, particularly regarding the dates on photographs of the case property. The court dismissed these contradictions as minor and not affecting the core issue of recovery. The court found the testimonies of the official witnesses credible and consistent, noting that no animosity or motive for false implication was established.

5. Non-joining of Independent Witnesses:
The appellants argued that the recovery was made at a public place without independent witnesses. The court noted that the Investigating Officer made efforts to join independent witnesses, but none were willing to participate. The court reiterated that the testimonies of official witnesses hold the same evidentiary value as independent witnesses and found no reason to discredit them.

6. Sentencing of the Appellants:
The court considered the appellants' plea for leniency, noting their responsibilities towards their families and the substantial period already spent in custody. The court upheld the conviction under Section 18 of the NDPS Act but modified the sentence. The appellants were sentenced to ten years of rigorous imprisonment and a fine of ?1 lakh each, with an additional one-year imprisonment in default of payment.

Conclusion:
The court upheld the conviction of the appellants for the offence punishable under Section 18 of the NDPS Act, finding no legal infirmity in the prosecution's case. The sentence was modified, reducing the period of rigorous imprisonment to ten years while maintaining the fine of ?1 lakh each.

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