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TMI Blog2013 (7) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... to the correct conclusion - the judgment was well discussed and he rightly relied on the prosecution witnesses and confessional statement of accused persons – Court followed the judgment of (2008) 1 SCC (Cri) Shanti Lal Versus State of M.P(2007 (10) TMI 554 - SUPREME COURT OF INDIA) - the witnesses of fact before whom Charas was recovered were Custom Officers and there was no reason to disbelieve their evidence - Their evidence was supported by the confessional statement of accused which was recorded before Custom Officers and as they are not police personnel - on the statement recorded before them reliance can be placed – appeal partly allowed as the term of imprisonment was reduced. - Criminal Appeal No.-873 of 2004 - - - Dated:- 14-2-2013 - Anurag Kumar, J. For the Petitioner : Jagdish Singh,Begum Sabiha Kamal,Sudhanshu Kumar Upadhyay For the Respondent : I. B. Singh ORDER This is an appeal preferred by the appellant Afzal under Section 374(2) Cr.P.C. against the judgment and order dated 15.03.2004 passed by Special Judge, N.D.P.S. Act, Lucknow, convicting the appellant Mohd. Afzal and one Banwari Lal of the charge under Section 20(b)(ii) and 25 of the N.D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tapes were from another cavity in the Diggy of the car. On opening of these packets, black brown coloured bricks were found in each packet. In 49 packets 4 bricks in each packet and in one packet three bricks were found. All recovered material was weighed and it was found to be 98.765 Kg. All the three persons were arrested and Fird was prepared and the statement of accused under Section 108 of Customs Act was recorded, in which, they confessed their crime and involvement in smuggling of Charas. Sample of Charas was taken and sent to Chemical Examiner Central Laboratory, New Delhi and on chemical analysis it was found to be Charas. Sri V.K. Joshi was appointed as Investigating Officer who recorded the statement of witnesses and filed complaint in the case. Accused persons were charged for offence under Section 20(b)(ii) and 25 of N.D.P.S. Act. Prosecution examined five witnesses i.e. P.W.-1 Sanjai Chatterji, P.W.-2 Shailendra Mohan Bhatnagar, P.W.-3 Sri Abhay Kumar Srivastava, Superintendent, P.W.-4 Sri Sanjai Srivastava, Incharge, Mal-Khana, P.W.-5 Sri V.K. Joshi, Investigating Officer of the case. Hearing the argument of both side and going through the record, the learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arsh and severe. Sentence may be modified to the sentence he has already undergone and punishment for non-payment of fine may also be reduced. Contrary to it, the learned counsel for Union of India submitted that 98.76 kg of Charas was recovered from the accused and he was rightly convicted for rigorous imprisonment of 14 years and a fine of Rs. 1,50,000/- and in default 3 years rigorous imprisonment. Custom Officers who have seized the Charas from the possession of accused are not a police officer and statement recorded before them are reliable and reliance can be placed on the confessional statement of accused recorded before them. All the mandatory provisions of Section 42, 50 and 52 of the N.D.P.S. Act were followed. The recovered Charas was not found on the personal search of any of the accused. The Charas was being transported by a Car. Accused persons were transporting the Charas. 98.76 Kg of Charas was recovered from them and considering the quantity of Charas the sentence awarded to appellant is appropriate. It is neither harsh nor severe. Appeal has got no force and is liable to be dismissed. Considering the submission of both side and going through the record, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as part of the substantive sentence, exceed one-fourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of fine. (2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under Section 29." The Hon'ble Apex Court in (2008) 1 SCC (Cri) Shanti Lal Versus State of M.P. said that the term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non- payment of fine. Relying on AIR 1941 All 608, Mendi Ali case, in which it was held as under:- "So far as the fine is concerned, I cannot think it is proper, in the case of a poor peasant, to add to a very long term of substantive imprisonment a fine which there is no reasonable prospect of the accused man paying and for default in paying which he will have to undergo a yet further term of imprisonment. And, in my judgment, without venturing to say whether it is a course which is strictly in accordance with the law or not, I cannot help thinking that it becomes all the m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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