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TMI Blog2019 (5) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... only defence before the Courts below was that the transportation was legal as it was being done on the strength of a valid licence issued by a competent authority. The truck was standing on a road near village Palasiya which is 18 kilometers away from one of the villages which is mentioned in the license and from where the Appellant could have loaded and transported the poppy straw according to the licence - The conclusion of the Trial Court regarding the guilt of the Appellant under Section 8 read with Section 15 of the NDPS Act does not call for any interference. Whether the Appellant has been rightly convicted under Section 8 read with Section 15 of the NDPS Act? - HELD THAT:- As the contravention of license in relation to poppy straw has been dealt with in Section 15, Section 26 of the Act is not attracted and the Courts below are right in holding that the Appellant is liable to conviction under Section 8 read with Section 15 of the NDPS Act. Appeal dismissed - decided against appellant. - Criminal Appeal No. 1510 of 2010 - - - Dated:- 1-5-2019 - L. NAGESWARA RAO And M.R. SHAH, JJ. JUDGMENT L. NAGESWARA RAO, J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Singh who had a valid licence issued by the District Excise Officer. A charge was framed against the Appellant under Section 8 read with Section 15 and Section 8 read with Section 26 of the NDPS Act. The Trial Court framed the following issues for consideration under Section 8 read with Section 15 of the Act which are: a). Whether, the seized material is the psychotropic substance poppy straw i.e. is the Dodachura? b). Whether, the accused in violation of the provisions of the NDPS Act, or the rules made thereunder, has kept in his possession 415 kilograms of poppy straws, or transported or purchased or sold. c). Whether, the accused has committed any offence. 4. The Trial Court also framed issues under Section 8 read with Section 26 of the Act which are as follows: a). Whether, the holder of the licence, permit or authorization granted under this Act or any rule or order made thereunder or any person in his employ and action on his behalf has failed to produce without any reasonable cause such licence, permit or authorization on demand; OR b). Omitted without any reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lakh. The truck which was seized was held liable for confiscation in accordance with the provisions of Section 60(3) of the NDPS Act. The Trial Court directed confiscation of the vehicle and sale of the same by public auction after the period of appeal expired. 6. The High Court affirmed the conviction and sentence of the Appellant finding no fault was committed by the Trial Court. 7. Mr. Puneet Jain, learned counsel appearing for the Appellant, submitted that the Prosecution failed to discharge the burden of proving the offence. He criticized the judgment of the High Court by which the burden was shifted to the Appellant to prove that he is innocent. He submitted that the transportation of the poppy straw was from the villages which were mentioned in the licence but the loading took place from the road where the lorry was parked. Due to rain, the truck could not be taken to the villages from which the poppy straw had to be collected. He stated that the prosecution did not adduce any evidence to show that the contraband was purchased and loaded from a village which was not mentioned in the licence. He further argued that at the most only an offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. *** *** *** *** 26. Punishment for certain acts by licensee or his servants. - If the holder of any licence, permit or authorisation granted under this Act or any rule or order made thereunder or any person in his employ and acting on his behalf (a) omits, without any reasonable cause, to maintain accounts or to submit any return in accordance with the provisions of this Act, or any rule made thereunder; (b) fails to produce without any reasonable cause such licence, permit or authorisation on demand of any officer authorised by the Central Government or State Government in this behalf; (c) keeps any accounts or makes any statement which is false or which he knows or has reasons to believe to be incorr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 of the NDPS Act. Learned counsel for the Appellant submitted that violation of the conditions of a licence can be punished only under Section 26 (d) of the NDPS Act which carries a maximum sentence of three years. Punishment under Section 26 (d) is for breach of a condition of a licence for which a penalty is not prescribed elsewhere in the Act. Section 15 of the Act deals with punishment for contravention in relation to, amongst other things, transportation of poppy straw. In case the contravention involves commercial quantity, a person shall be sentenced to rigorous imprisonment for not less than 10 years according to Section 15. As the contravention of license in relation to poppy straw has been dealt with in Section 15, Section 26 of the Act is not attracted and the Courts below are right in holding that the Appellant is liable to conviction under Section 8 read with Section 15 of the NDPS Act. As the facts of this case are different from Criminal Appeal No. 318 of 2005, we are unable to accept the submission of Mr. Jain that the said judgment has to be given due weightage while considering the correctness of the impugned judgment. 13. Though we have taken n ..... 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