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2013 Supreme(Pat) 326
IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, J.
Birendra Kumar Sharma - Appellant
Versus
Union Of India - Respondent
Criminal Appeal (SJ) No.1052 of 2011
Decided on : 15-03-2013
For the Appellant :Mr. Vinay Ranjan, Advocate & Mr. Aaruni Singh, Amicus Curiae.
For the Respondent: Mr. Binay Kumar Pandey, C.G.C.
Headnote:
NDPS Act - Conviction under Section 20(b) and 23 - Summary of Acts and Sections: NDPS Act, 1985 - Sections 20(b), 23, 25, 42, 52, 52A, 67 - The judgment discusses the violation of procedural requirements under Section 42 of the NDPS Act, the inadmissibility of the confessional statement, and the failure to comply with the disposal guidelines under Section 52A. The court found the trial to be violative of Article 21 of the Constitution and acquitted the appellant.
Fact of the Case:
The appellant was convicted under Section 20(b) and 23 of the NDPS Act for trafficking Charas(Hashish) from Nepal. The prosecution case was based on the interception of an oil tanker containing 715 Kgs. of Hashish. The appellant made a confessional statement, and the seized Hashish was sent for chemical analysis. The trial court convicted the appellant based on the prosecution's evidence.
Finding of the Court:
The court found the trial to be violative of Article 21 of the Constitution due to non-compliance with procedural requirements, inadmissibility of the confessional statement, and failure to comply with disposal guidelines. The judgment of conviction and the order of sentence were set aside, and the appellant was ordered to be released.
Issues: Violation of procedural requirements under Section 42 of the NDPS Act, inadmissibility of the confessional statement, failure to comply with disposal guidelines under Section 52A
Ratio Decidendi: The court held that the trial was violative of Article 21 of the Constitution due to non-compliance with procedural requirements, inadmissibility of the confessional statement, and failure to comply with disposal guidelines. The appellant was entitled to be acquitted.
Final Decision: The judgment of conviction and the order of sentence were set aside, and the appellant, who was in jail custody, was ordered to be released forthwith.
The appeal arises out of the judgment of conviction dated 26.03.2011 passed in D.R.I. Case No.18 of 2003 by the learned 7th Additional Sessions Judge-cum-Special Judge, NDPS Act, Muzaffarpur. The trial court after holding the appellant guilty by the aforesaid order passed the order of sentence on 30.03.2011.
2. The appellant, Birendra Kumar Sharma has been convicted under Section 20(b) and 23 of the NDPS Act, 1985(For short “the Act?) and has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- under Section 20(b) of the Act. In lieu of default of payment of fine, he has been further directed to undergo S.I. for one year. He has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- for the offence under Section 23 of the Act. In lieu of default of payment of fine, he has been further directed to undergo S.I. for one year. However, both the sentences have been ordered to run concurrently.
3. The prosecution case is based on a complaint filed by one Rakesh Ranjan, Intelligence Officer, Directorate of Revenue Intelligence, Muzaffarpur (for short “DRI”) on 01.10.2003 in the court of Sessions Judge, Muzaffarpur.
4. The prosecution case, in brief, as per complaint(Ext-4) dated 01.10.2003, is that on the basis of specific information on 04.07.2003 at 6.30 p.m., the complainant Rakesh Ranjan(P.W.1) along with other members of the preventive team intercepted oil tanker bearing registration no.W.B.73-4053 near Khagra Gumti, Kishanganj, Bihar. Two persons from the gathered passerby were requested to witness the search proceeding. Considering safety reason, the witnesses were requested to accompany the team to DRI office, Muzaffarpur for which they agreed. The oil tanker along with driver and independent witnesses were brought to DRI office, Muzaffarpur. They reached Muzaffarpur at 9 a.m. on 05.07.2003 and search of the said tanker was conducted in their presence. A secret chamber specially designed and built between the two chambers of the oil tanker was opened in presence of driver and independent witnesses. In all, 35 poly bags containing Charas(Hashish) were recovered and on weighment, total weight of Hashish came to 745 Kgs. gross, i.e., 715 Kgs.(net), which was seized under Section 42(c) for violation of Section 8(c) of the Act and the aforesaid oil tanker used as mode of conveyance of transportation of said Hashish was also seized under Section 42(c) of the Act as the same was liable for confiscation under Section 60(3) of the Act.
5. The appellant, after being intercepted, made his voluntary statement under Section 67 of the Act before independent witnesses and admitted his guilt as regards his conscious involvement in trafficking of Charas(Hashish) from Nepal. He was arrested under Section 42(d) of the Act and was forwarded to Judicial Custody on 05.07.2003. In his confessional statement recorded under Section 67 of the Act, he had disclosed that he was working as an agent of, Sandeep Singh, son of Baldeo Singh, resident of Pandipari, Siliguri, West Bengal, who, at the relevant time was residing at Biratnagar, Nepal. He further disclosed that the above said consignment was secreted in the said oil tanker near Narain Ghat, Nepal in presence of said Sandeep Singh and was to be delivered at Alampur, West Bengal. He further stated that he had carried Hashish from Nepal in the said oil tanker on several occasions in past and delivered to persons of Indore( MP) Oraiyyo and Muradabad (UP) and Delhi.
6. The sample of the seized Hashish was sent for chemical analysis to the Director, Central Revenue Control Laboratory, Pusa, New Delhi wherein it was reported by the chemical examiner, CRCL vide endt.f. No.1/ND/R/2003, CLD-1997(W) on 30.07.2003 that the sample under reference was Charas(Hashish).
7. The matter was referred to Enforcement agencies at Kolkata, Siliguri, Lucknow, Amritsar, Jammu to conduct follow up action in the case. The investigat
