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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
PRAKASH D. NAIK, J.
Musa Abdul Wimumuni Kenneth – Appellant
Versus
Sunil D. Dalvi and Another – Respondents
Criminal Appeal No. 1034 of 2013
Decided On : 06-11-2020
NDPS Act - Conviction under Section 21(c) r/w Section 8(c) and Section 23(c) r/w Sections 21(c) and 8(c) - Summary of Acts and Sections: NDPS Act, 1985, Section 21(c), Section 8(c), Section 23(c), Section 29 - The court analyzed the evidence and found the appellant guilty of possessing and importing 980 grams of Cocaine. The court reduced the sentence from 15 years to 12 years for both convictions and ordered the sentences to run concurrently.
Fact of the Case:
The appellant was convicted for possessing and importing 980 grams of Cocaine. The prosecution proved the charges against the appellant, and the court found him guilty. The appellant appealed for reduction of the sentences and for the sentences to run concurrently.
Finding of the Court:
The court found the appellant guilty of possessing and importing Cocaine based on the evidence presented by the prosecution. The court reduced the sentence from 15 years to 12 years for both convictions and ordered the sentences to run concurrently.
Issues: The issues involved the appellant's conviction for possessing and importing Cocaine, the reduction of the sentences, and the concurrent running of the sentences.
Ratio Decidendi: The court reduced the sentence from 15 years to 12 years for both convictions and ordered the sentences to run concurrently based on the evidence presented and the legal provisions of the NDPS Act.
Final Decision: The appellant's appeal was partly allowed, the conviction was confirmed, and the sentences were reduced to 12 years each, to run concurrently.
JUDGMENT :
PRAKASH D. NAIK, J.
1. The appellant has been convicted vide Judgment and order dated 16th July, 2013 passed by Special Judge under N.D.P.S. Act in N.D.P.S. Special Case No. 140 of 2009. He has been convicted for offence under Section 21(c) r/w Section 8(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’) and sentenced to suffer rigorous imprisonment for the term of Fifteen years and to pay fine of Rs. 1,00,000/- and in default to suffer simple imprisonment for Six months. He is also convicted for the offence under Section 23(c) r/w Sections 21(c) and 8(c) of NDPS Act and sentenced to suffer rigorous imprisonment for Fifteen years and to pay fine of Rs. 1,00,000/- in default to suffer simple imprisonment for Six months. The substantive sentences were directed to run consecutively.
2. The brief facts of the prosecution case are as under:-
(b) As per instructions of superior officers, complainant summoned two panchas and on making inquiry with the passenger, in the presence of panchas, bag was opened and it was found containing capsules.
(c) The contents in one of the capsule was tested with the help of drug identification kit and the test gave positive indication for Cocaine. The passenger was taken to the office of A.I.U. along with baggage and panchas. Search was conducted in which 83 capsules were found to be containing 980 grams of Cocaine. Samples were drawn and the property came to be seized under Panchanama along with travelling documents found with the passenger. Memo of arrest was prepared. Statement of the passenger was recorded. Samples were sent for analysis to chemical analyzers and on completing investigation, the complaint was filed.
3. Charge was framed vide Exh.6 on 20th January, 2011. Subsequently, the charge was amended on 2nd May, 2013.
4. Learned advocate for the appellant urged two grounds. Firstly, it is contended that the appellant does not challenge the conviction, however, the learned Judge has committed error in directing that the sentences shall run consecutively. Secondly, the sentence of imprisonment awarded by the trial Court is harsh and the same to be reduced to the period undergone by the appellant.
5. Learned advocate for the appellant had relied upon several decisions which are as under:
(ii) Balwinder Singh vs. Assistant Commissioner and Central Excise, 2005 AIR (SC) 2917
(iii) Yasihey Yobin vs. The Department of Customs, Shillong, 2014 (5) SCC (Cri) 661
(iv) Baldev Singh vs. State of Haryana, 2015 (12) Scale 308
(v) Shahejadkhan Mahebubkhan Pathan vs. State of Gujarat, 2013 (1) SCC (Cri) 558
(vi) Dadu @ Tulsidas vs. State of Maharashtra, 2000 AIR (SC) 3203
(vii) Shakeel Habib Khan @ Papu Pager S/o Habibkhan vs. A.B. Kodnani and Another in Criminal Appeal No. 456 of 2010 passed by this Court in order dated 9th February, 2018
(viii) Manoj @ Panu vs. State of Haryana passed by the Hon’ble Supreme Court in Criminal Appeal No. 2063 of 2013 in order dated 9th December, 2013
(ix) Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti vs. Assistant Collector of Customs (Prevention), Ahmedabad and Others, AIR 1988 (SC) 2143
6. Learned counsel for the respondent submitted that there is no infirmity in awarding the punishment to the appellant by the trial Court. The offence is of serious nature and the sentence of Fifteen years imposed by the Court on each count is just and proper. No reduction be granted in the sentences of imprisonment. No case is made out
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