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TMI Blog2017 (11) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... us 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. - Criminal Appeal No. 7568 of 2008 - - - Dated:- 1-11-2017 - Hon'ble Dinesh Kumar Singh-I, J. For the Appellant : Tripathi B.G. Bhai,Dinesh Chandra Mishra For the Respondent : B.K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls and the witnesses also climbed into the truck and it was found that on the upper side, bags of gutka and sweet-supari were kept while in the bottom of the truck, iron scrap was filled. When the bags of gutka/sweet-supari were being removed, some different kind of packets also emerged beneath the bags. Sensing some doubt, those bags were separated by the officials, 10 in number, and when they were opened, Ganja was found inside. On interrogation the accused no. 2, Vikas Kumar, cleaner denied any contraband while accused no. 1, Shatrughan Pandey told that all the consignments i.e. Ganja, gutka/sweet supari and iron scrap were loaded from the Godown of M/s. Sona Carrying Corporation, N.H. 28, Chandani Chock, Motihari (in front of patrol pump) Muzaffarpur and the goods were loaded on the direction of a person called Pappu from the Godown of transport and Pappu had told them to carry 10 packets Ganja to Ghaziabad safely. On the request of accused no. 1, the truck loaded with goods along with both the accused and witnesses, were taken to Customs Office, Basti for the purpose of safety, where all the packets of Ganja were unloaded and kept aside. Remaining 34 packets of gutka/sweet sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e indulge in this illegal work, he replied that Mr. Pappu had lured him to get appropriate reward and that is why he had done this work for the first time. The statement of Shatrughan Pandey was recorded on 12/10/2006, in which he stated that he was owner and driver of truck no. HR 38B-9697. On 10/10/2006 he loaded 15375 Kgs iron scrap and 34 bags of gutka/sweet supari from M/s. Sona Carrying Corporation, where 141 Kgs. Ganja was also loaded by one Shri Pappu of M/s. Sona Carrying Corporation, which was in his knowledge. He was instructed to go to Ghaziabad and had to halt near Sales Tax barrier and to contact on phone the number mentioned in the challan form of Indian Cargo Transport Company and some one from that company would have taken the gutka and Ganja. Later on he had to carry scrap to Raj Steel Traders Muzzaffar Nagar, but was intercepted by them. Similarly the co-accused Vikas Kumar also stated in his statement recorded the same day that he was cleaner of the truck and was told that on 10/10/2006 accused Shatrughan Pandey had loaded iron scrap and other goods in Muzaffarpur and had told him that he would have to go to Ghaziabad first and thereafter Muzzaffar Nagar. He was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er sections 8/20 and 29 of NDPS Act, to which he pleaded not guilty. 4. The following documentary evidence was taken into consideration by the learned Court below. The inventory filed by the prosecution (Exhibit Ka-1); Panchayatnama/recovery memo (Exhibit Ka-2), special report sent to Assistant Commissioner Customs, Gorakhpur regarding recovery (Exhibit Ka-4), special report sent to Joint Commissioner Customs, Lucknow (Exhibit Ka-5), the statement of co-accused Vikas Kumar and accused Shatrughan Pandey recorded on 12/10/2006 (Exhibit Ka-6) and (Exhibit Ka-7); the statement of the accused persons recorded on 13/10/2006 under section 67 NDPS Act and section 108 of Customs Act (Exhibit Ka-8) and (Exhibit Ka-9) respectively, examination report (Exhibit Ka-10), arrest memo of accused Vikas Kumar and Shatrughan Pandey (Exhibit Ka-11 and Exhibit Ka-12 respectively), site plan (Exhibit Ka-13), complaint (Exhibit Ka-14), certified copy of page nos. 24 and 125 from register of Malkhana (Exhibit Ka-15). 5. Besides above the prosecution also examined Shri Rajkumar, Inspector Customs Circle, Basti as PW-1, Shri V K Pandey, Commissioner Customs, Circle Basti as PW-2, Shri N K Rai Inspector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guments raised from the side of the accused one by one. 10. The learned Court below referred to statement of PW-1, Raj Kumar, who supported the prosecution version mentioned above and stated that on search being made of the truck, some different types of packets were seen, which were not mentioned in the documents shown by the accused. These packets were cut open and Ganja was found in them. In all, there were 10 packets of Ganja. At the instance of the accused and from the angle of security, for extensive search of the truck, the truck was brought to Customs Office, where after taking search, packets of Ganja were unloaded. Out of them about 50 grams each were taken out for sample and they were sealed. On the seal, the officers and the independent witnesses had put their signatures; accused had also put his signature. These packets were separately weighed and some of them were found to be 13 kilograms, some of 14 kilograms, some of 12 kilograms and some of 14 kilograms. Thus total Ganja recovered from the truck was 141 kilograms. Besides that there were 34 sacks of gutka and scrap also loaded. The inventory of the recovered material was prepared by him at the direction of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion deposing as PW-4 stated that he was In-Charge, Godown. He had brought the register of Godown. On 12/10/2006, the weight of illicit Ganja recovered by Custom Superintendent, Shri V K Pandey with his other companions from the truck in 10 packets was 141 Kgs, and the weight of other items was 1540 kilograms and 51375 kilograms. He had brought the 10 packets of recovered Ganja marked as material Exhibit Ka-1 to K-10, which was entered at serial number 232 of the register, certified copy of which was Exhibit Ka-15. In cross-examination it was stated that the items entered at serial number 232 were not deposited in Divisional Godown. PW-5 Dildhad Ahmad, an independent witness corroborating the statements of other witnesses has admitted his signature on Exhibit Ka-1, Ka-2 and Ka-3 and in cross-examination stated that the packet of Ganja was opened by him on the truck with the aid of a knife which was provided to him by Rajendra constable. Citing above evidence on record, the learned counsel for the prosecution argued that on the basis of the aforesaid evidence the accused appellant was guilty of the charge. It was specifically argued that the accused was told that he had a right to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicable, nor in such matters the officer making search would have to record reasons of satisfaction as required under section 42. Further reliance is placed on T. Thomson vs State of Kerala and aother, 2004 SCC (Criminal) 447, in which it is provided that if accused gives the statement of his own accord and after cross-examination of witnesses examined from the side of prosecution, Court reaches the conclusion that the statement of accused was voluntarily given, such a statement of accused would be admissible in evidence. Further reliance was placed on Union of India vs Munna and others, 2004 SCC (Criminal ) 1905, in which it is held that the provisions of section 25 and 26 of the Indian Evidence Act would not be applicable on officers of Customs Department; in such situation the statement of accused given to the Custom Officers (Exhibit Ka-9) under section 67 of NDPS Act and section 108 of Customs Act would be admissible. The accused Shatrughan Pandey has admitted in his statement that he had knowledge that illicit Ganja was being transported in the truck which was got loaded by one, called Pappu Singh. Regarding delay in arrest of the accused it was argued that the Custom Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earched and seized at a public place after sunset and before sunrise, there would be no violation of the Proviso to section 42 and of the provision made under section 42 (ii), hence the argument contrary to it of the defence would not hold good. The objection raised regarding search of the truck made after bringing the same in the Custom Officer, Basti Region, being violative of the provisions of law, it is held by the Court below that the said action was resorted to because of security reasons at the request of the accused Shatrughan Pandey himself, hence no benefit of this would go to the accused. The argument that, had the accused known that there was illicit Ganja in his truck, on being directed to halt the vehicle for being checked, he would not submit to the checking, rather he would try to flee from there, has been rubbished by the Court below stating that the witnesses of prosecution have stated in cross-examination that accused Shatrughan Pandey had admitted that after the agreement between M/s. Sona Carrying Corporation and Pappu, Pappu had given assurance to the accused Shatrughan Pandey that he would be adequately rewarded if sweet supari and gutka along with illicit Ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n facts, but has confined his arguments to the point of punishment. According to him the accused is extremely poor; he is not a previous convict; he has no criminal history; he is languishing in jail since 13/10/2006, hence has suffered incarceration of approximately 11 long years continuously; it is his first offence; because of poverty he could not pay heavy amount of fine; he has been awarded very harsh punishment which needs to be reduced to minimum i.e. 10 years and also default clause needs to be modified. If he is ordered to remain in jail even after the period of substantive sentence is over only because of his inability to pay fine, serious prejudice will be caused not only to him, but also to his family members who were innocent; he was simply a carrier of contraband and not a dealer of it; he appears to have indulged in commission of this crime due to need of money on account of poverty. 16. From the side of Union of India it is submitted that 141 grams of Ganja has been recovered from the accused which is a huge quantity much above the commercial quantity; the act of the accused is a crime against society and nation which is prejudicial to the young generation becaus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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