2018 (12) TMI 441 - HC - Indian Laws

Smuggling - Heroin - recovery of Heroin made properly or not - Statements made by the accused - admissible evidence or not - Section 67 of NDPS Act - retraction of statement or not - effect of retraction - conscious possession of heroin by the two accused proved or not - Held that - There is no illegality or infirmity with the judgment as regards the conviction of both the accused. The judgment is well reasoned one. The trial Court in light of the facts and circumstances of the case on appreciation of evidence adduced by the complainant taking into view the stand taken by the accused in the defence and evidence adduced by them in that regard had come to the conclusion that both the accused connived with each other in furtherance of their common mind and common object and hatched a criminal conspiracy to bring 22.250 kgs. heroin from Jalandhar to Amritsar - there is no reason to disagree with such findings recorded by the trial Court. Appellant have not been able to put forward any plausible or convincing reason, which might have prompted to find any fault with the inference of conviction recorded by the trial Court and to interfere therewith - the judgment of conviction against both the appellants/accused is upheld. The ends of justice shall be adequately met, if sentence of 12 years of rigorous imprisonment of both the accused is reduced to rigorous imprisonment for 10 years, whereas keeping the fine part intact. Appeal allowed in part.

Summary

Issues Involved:
1. Recovery of heroin.
2. Voluntariness and admissibility of statements under Section 67 of NDPS Act.
3. Retraction of statements and its effect.
4. Conspiracy and conscious possession of heroin.

Detailed Analysis:

1. Recovery of Heroin:
The prosecution's case was based on specific intelligence received by the Directorate of Revenue Intelligence (DRI) about narcotics being transported in an Indica car. The car was intercepted, and the accused, Parshotam Lal Sondhi, was found in possession of heroin concealed in unstitched ladies' suits. The total weight of heroin recovered was 22.250 kgs. The heroin was packed in transparent heat-sealed polythene bags marked “Food Saver” and tested positive for heroin using a Drug Testing Kit.

2. Voluntariness and Admissibility of Statements under Section 67 of NDPS Act:
The trial court examined whether the statements made by the accused under Section 67 of the NDPS Act were voluntarily made and admissible in evidence. The statements recorded by the DRI officers indicated that the accused admitted to their involvement in the illegal trafficking of heroin. The court found these statements to be voluntarily made and admissible in evidence, despite the accused later retracting their statements.

3. Retraction of Statements and Its Effect:
Both accused retracted their statements, claiming they were tortured and coerced into making confessions. Parshotam Lal Sondhi claimed political persecution and harassment, while Surinder Singh @ Bittu Atwal alleged torture and coercion by DRI officials. However, the trial court did not find these retractions credible, as the initial statements were detailed and consistent with the evidence collected during the investigation.

4. Conspiracy and Conscious Possession of Heroin:
The trial court found that both accused conspired to transport heroin from Jalandhar to Amritsar. The prosecution's evidence, including the recovery of heroin, the statements of the accused, and the items recovered from their residences, supported the charge of conspiracy. The court concluded that the accused were in conscious possession of the heroin, as they were aware of its presence and were actively involved in its transportation.

Judgment:
The trial court convicted both accused under Sections 21, 25, and 29 of the NDPS Act and sentenced them to rigorous imprisonment for 12 years and a fine of ?1,00,000 each, with an additional two years of rigorous imprisonment in default of payment of the fine. The High Court upheld the conviction, finding no illegality or infirmity in the trial court's judgment. However, considering the appellants' age, family circumstances, and lack of previous convictions, the High Court reduced their sentence to 10 years of rigorous imprisonment while keeping the fine intact. The appeals were partly allowed with this modification.