2017 (11) TMI 161 - HC - Indian Laws

Offence under NDPS Act - Held that - The trial Court has imposed punishment of 13 years rigorous imprisonment and fine of ₹ 2.00 lakhs and in default of payment of fine additional rigorous imprisonment of 3 years. There is nothing on record to show that accused has ever been convicted earlier for any crime. The prosecution version shows that he fell prey to avarice of earning money which he would get if he had successfully reached the recovered Ganja at the designated place but the in meantime he was caught. It is his first offence as per record. The learned lower Court could have taken a little lenient view by imposing minimum punishment under law which is 10 years, but it has chosen to award punishment higher to that probably because the quantity of Ganja recovered was much higher than the commercial quantity. It is also apparent that the default clause carries 3 years additional rigorous imprisonment and the amount of fine being two lacs, appears to be such, which the accused would not be able to arrange and hence would have to suffer additional 3 years rigorous imprisonment. In view of this, taking into consideration all the facts and circumstances and looking to the poor financial condition as stated by the learned counsel for the accused appellant and not disputed by the learned counsel for Union of India, it would be proper if substantive sentence is reduced to minimum prescribed under 20 (b) (ii) (C) i.e. 10 years rigorous imprisonment instead of 13 years and in default of payment of fine he may be directed to further undergo simple imprisonment of one year. In view of above, the appeal is partly allowed. The conviction of the accused appellant under section 8/20 (b) (ii) (C) of the NDPS Act is modified by reducing it to 10 years rigorous imprisonment instead of 13 years and in default of payment of fine of ₹ 2 lakhs he shall further undergo simple imprisonment of one additional year. If the accused has already spent the said period in jail, he shall be set at liberty in this case forthwith, if not required in any other case.

Summary

Issues Involved:
1. Legality of the search and seizure process.
2. Compliance with procedural requirements under the NDPS Act.
3. Validity of the accused's statements.
4. Determination of guilt based on evidence.
5. Appropriateness of the sentence imposed.

Issue-wise Detailed Analysis:

1. Legality of the Search and Seizure Process:
The search and seizure of the truck carrying contraband were conducted by a team of Customs Officials. The truck was stopped, and upon inspection, 141 kgs of Ganja were found concealed under bags of gutka and iron scrap. The accused did not object to the search, and the contraband was seized following the provisions of the NDPS Act.

2. Compliance with Procedural Requirements under the NDPS Act:
The defense argued that the search was conducted in violation of Section 42(1) of the NDPS Act, as it was done between sunset and sunrise without proper authorization. However, the court noted that the search was conducted by a Gazetted Officer, and therefore, the provisions of Sections 41 and 42 were not mandatory. The court also held that the provisions of Sections 52, 55, and 57 of the NDPS Act were directory and not mandatory, citing relevant case law.

3. Validity of the Accused's Statements:
The accused's statements were recorded under Section 67 of the NDPS Act and Section 108 of the Customs Act. The court held that these statements were admissible as they were given voluntarily and were not obtained under duress. The accused admitted knowledge of the contraband being transported in the truck, which was corroborated by other evidence.

4. Determination of Guilt Based on Evidence:
The prosecution presented substantial documentary evidence, including the recovery memo, statements of the accused, and the chemical analysis report confirming the substance as Ganja. The court found that the evidence established beyond reasonable doubt that the accused was knowingly transporting illicit Ganja. The defense's argument that the accused was falsely implicated was rejected by the court.

5. Appropriateness of the Sentence Imposed:
The trial court sentenced the accused to 13 years of rigorous imprisonment and a fine of ?2 lakhs, with an additional 3 years of imprisonment in default of payment. The appellate court considered the accused's financial condition, lack of criminal history, and the fact that it was his first offense. The court reduced the substantive sentence to the minimum prescribed under Section 20(b)(ii)(C) of the NDPS Act, i.e., 10 years of rigorous imprisonment, and modified the default clause to one year of simple imprisonment.

Conclusion:
The appeal was partly allowed, modifying the sentence to 10 years of rigorous imprisonment and one year of simple imprisonment in default of payment of the fine. The court directed immediate compliance and disposal of the case property as per rules after the expiry of the appeal period.