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2017 (10) TMI 979 - HC - Indian LawsOffence under Narcotic Drugs and Psychotropic Substances Act, 1985 - Held that - Appellant Rajeev Verma is guilty of committing offence under Section 8/21 and 8/29 of Narcotic Drugs and Psychotropic Substances Act, 1985. This Court has already held that except the confessional statement recorded under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 of the co-accused Rajeev Verma and the appellant Abdul Aziz, there is no other evidence against Abdul Aziz for holding him guilty for offence under Section 8/29 of Narcotic Drugs and Psychotropic Substances Act,1985. Accordingly, it is held that the prosecution has failed to prove the guilt of the appellant Abdul Aziz beyond reasonable doubt and accordingly, he is acquitted of the charge under Section 8/29 of Narcotic Drugs and Psychotropic Substances Act, 1985. Accordingly, the conviction of the appellant Rajeev Verma for offence under Sections 8/21 and 8/29 of Narcotic Drugs and Psychotropic Substances Act, 1985, recorded by Special Judge (N.D.P.S.Act), Gwalior by judgment dated 27-10-2004 in Special Sessions Trial No.2/2002 is hereby affirmed. The conviction of appellant Abdul Aziz for offence under Section 8/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 recorded by Special Judge (N.D.P.S.Act), Gwalior by judgment dated 27-10-2004 in Special Sessions Trial No. 2/2002 is hereby set aside, and the appellant Abdul Aziz is acquitted of all the charges. The huge quantity of Heroine which has been recovered from the possession of the appellant Rajeev Verma cannot be lost sight. The maximum sentence for offence under Section 8/21 of Narcotic Drugs and Psychotropic Substances Act, 1985 is twenty years and a fine of ₹ 2 lac. The Trial Court has awarded jail sentence of 10 years and a fine of ₹ 1 lacs. This Court is of the considered opinion that the Trial Court has already adopted a very lenient view while awarding sentence, and hence, the sentence awarded by the Trial Court does not call for interference and hence, the jail sentence of 10 years and a fine of ₹ 1 lacs awarded by the Court of Special Judge (N.D.P.S.Act), Gwalior by judgment dated 27-10-2004 in Special Sessions Trial No.2/2002 is hereby affirmed. The appellant Abdul Aziz is on bail. His bail bonds stand discharged. The fine amount, if deposited by the appellant Abdul Aziz, be returned back. The appellant Rajeev Verma is on bail. His bail bonds and surety bonds are hereby cancelled. He is directed to immediately surrender before the Trial Court for undergoing the remaining jail sentence.
Issues Involved:
1. Admissibility of statements under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). 2. Compliance with Section 42(2) of the NDPS Act. 3. Conscious possession of contraband. 4. Reliability of evidence from departmental witnesses. 5. Validity of the resignation defense by appellant Rajeev Verma. Issue-wise Detailed Analysis: 1. Admissibility of Statements under Section 67 of NDPS Act: The court examined whether statements made under Section 67 of the NDPS Act are admissible in light of Section 25 of the Evidence Act. The court noted conflicting judgments from the Supreme Court, including Kanhaiyalal Vs. Union of India, Ram Singh Vs. Central Bureau of Narcotics, and Noor Aga Vs. State of Punjab. The court concluded that statements made under Section 67 of the NDPS Act are not admissible as evidence under Section 25 of the Evidence Act unless the prosecution proves beyond reasonable doubt that the statements were made voluntarily. 2. Compliance with Section 42(2) of NDPS Act: The court addressed whether non-compliance with Section 42(2) of the NDPS Act vitiates the trial. The court referred to the Supreme Court's decisions in Karnail Singh Vs. State of Haryana and Bahadur Singh Vs. State of Haryana, which held that non-compliance does not necessarily vitiate the trial unless it causes prejudice to the accused. The court found substantial compliance with Section 42(2) as the investigating officer sent the required information to his superior within 72 hours. 3. Conscious Possession of Contraband: The court analyzed the concept of "possession," "conscious possession," and "exclusive possession" through various Supreme Court rulings, including Mohan Lal Vs. State of Rajasthan and Baldev Singh Vs. State of Haryana. The court held that Rajeev Verma, being the custodian of the almirah where 1 kg 450 gms of heroin was found, was in conscious possession of the contraband. The court rejected Verma's defense that he had resigned from his position, noting inconsistencies and lack of evidence supporting his claim. 4. Reliability of Evidence from Departmental Witnesses: The court considered the reliability of evidence from departmental witnesses in the absence of corroboration from independent witnesses. Referring to Supreme Court judgments in P.P. Beeran Vs. State of Kerala and Baldev Singh Vs. State of Haryana, the court held that the testimony of departmental witnesses could be relied upon if it is trustworthy and credible. The court found the evidence of the investigating officers credible and corroborated by other circumstances. 5. Validity of the Resignation Defense by Appellant Rajeev Verma: The court scrutinized Rajeev Verma's defense that he had resigned from his position as Secretary of Arunodaya Khadi Gramodyog Sewa Sansthan before the search. The court found the defense unconvincing due to the lack of timely communication to the Registrar, Firms and Societies, and the absence of testimony from Verma's successor. The court concluded that the resignation was fraudulently prepared after the search was conducted. Conclusion: The court upheld the conviction of Rajeev Verma under Sections 8/21 and 8/29 of the NDPS Act, affirming the sentence of 10 years rigorous imprisonment and a fine of ?1 lakh. The court acquitted Abdul Aziz, finding no evidence beyond the confessional statements under Section 67 of the NDPS Act. The court directed Abdul Aziz's bail bonds to be discharged and his fine amount to be returned. Rajeev Verma was ordered to surrender immediately to serve the remaining jail sentence.
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