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2010 Supreme(Pat) 2158
PATNA HIGH COURT
Mridula Mishra and Dharnidhar Jha JJ.
Jony Sheikh
Versus
State Of Bihar
Criminal Appeal No. 136 of 2008 148 of 2008 151 of 2008
Decided On : SEPTEMBER 16, 2010
The admissibility of confessional statements and the sufficiency of evidence in establishing guilt despite excluding certain evidence.
Headnote:
NDPS Act - Smuggling of Ganja - Section 20 (b)(ii), 20 (b)(c) - Summary: The judgment discusses the interception of a truck carrying plastic scraps and ganja, the seizure of the contraband, and the confessional statements made by the accused. The court excluded the confessional statements and panchanama evidence due to lack of opportunity for the accused to explain, but found the prosecution's evidence satisfactory in establishing the guilt of the accused. The court also addressed the variance in weight of the sampled article and upheld the conviction based on the evidence presented.
Fact of the Case:
The case involved the interception of a truck carrying plastic scraps and ganja by the Customs Department. The accused were found guilty of smuggling ganja and sentenced to rigorous imprisonment.
Finding of the Court:
The court found the evidence presented by the prosecution satisfactory in establishing the guilt of the accused, despite excluding the confessional statements and panchanama evidence due to lack of opportunity for the accused to explain.
Issues: The issues included the admissibility of confessional statements, variance in weight of the sampled article, and the constructive possession of the contraband by the accused.
Ratio Decidendi: The court excluded the confessional statements and panchanama evidence due to lack of opportunity for the accused to explain, but upheld the conviction based on the satisfactory evidence presented by the prosecution.
Final Decision: The appeals were dismissed, and the conviction of the accused was upheld.
Mridula Mishra and Dharnidhar Jha JJ.
1. The three appeals arise out of judgment dated 19.12.2007 passed by the learned Additional Sessions Judge-cum- Special Judge, N.D.P.S. Act, Kishangnj in Special case No. 20 of 2005/Tr. No. 2 of 2005 by which the three appellants were found guilty of committing offences under Section 20 (b)(ii) of the NDPS Act 20 (b)(c) of the NDPS Act. Each of the three appellants were directed to undergo rigorous imprisonment for 15 years. Appellant Barjahan Sheikh was also directed to pay a fine of Rs. 2,00,000/- or to suffer rigorous imprisonment for one year in case, he defaulted in making payment of the fine. The two appellants Jony Sheikh and Nasir Hussain were directed to pay a fine of Rs. 1,00,000/- each else to suffer rigorous imprisonment of six months each. The three appeals have been preferred by the three appellants for challenging the orders of conviction and the sentence dated 19.12.2007 and 24.12.2007 respectively.
2. The complaint petition filed by PW Salimullah who at the relevant time was Inspector, Customs (Preventive), Kishanganj in which he stated that while checking for the prevention of the smuggling of goods on 26.11.2005 the checking party which was posted at Khagra Gumti at Kishanganj, found truck bearing registration No. AS OIL-3192 coming from Siliguri side. The truck was stopped and it was found that three persons were sitting therein who divulged their identifications by giving their names and full addresses. On enquiry by the complainant and his companions, the occupants of the truck pointed out that the vehicle was loaded with plastic scraps and was being taken from Assam to Murshidabad in West Bengal.
3. The complainant alleged that he and others got suspicious as easily available cheaper quality of plastic could never be transported from such a distant place like Assam to Murshidabad. The members of the preventive team expressed their desire to carry out a checking of the truck and they gave an option to the occupants to get the vehicle checked in presence of a Magistrate or any Gazetted Officer, but the same was declined by them and offered them to check the vehicle. On account of the stoppage of the vehicle many persons assembled there and on account of the request made by the occupants as also for safety reasons, the vehicle was brought to the Customs Office, Kishanganj which was located at a very short distance from Khagra Railway crossing. However, while the truck was being brought to the Customs Office, it developed some snag which was removed by calling a mechanic. When the truck was likely to reach the Customs Office, Kishanganj, the driver of the truck attempted to run away from it, but was chased and captured by the members of the preventive team and, thus, the truck was brought to the premises of the Customs Office, Kishanganj.
4. Two independent witnesses were called by the complainant and others from the nearby place for cooperating by remaining present as witnesses so that the truck could be searched. The consignment was unloaded and, lastly, it was found that amidst the bags containing plastic scraps nine other bags containing ganja had been kept at the bottom of the truck. The nine bags were recovered and their contents were weighed and it was found that ganja contained in them weighed 511 K.G. which could be valued at Rs. 10,22,000/-. The bags of the plastic scrap as also the bags containing ganja were seized preparing seizure memo Ext-2. The panchnama was also prepared in presence of the independent witnesses and the occupants of the truck which was also signed by the witnesses and the three appellants.
5. The appellants, thereafter gave their voluntary statements in presence of independent witnesses accepting their guilt after being interrogated by Superintendent, Customs (P), Kishanganj, Le., PW 5 Binay Kumar Jha in presence of witnesses and other officers. Those confessional statements were also signed by independent persons as witnesses as
