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2016 Supreme(Pat) 1438
IN THE HIGH COURT OF PATNA
Gopal Prasad, J.
Shiv Shankar Dixit @ Kallu @ Kalu S/o Dinanath Dixit – Appellant
Versus
The Union of India through the Commissioner Customs – Respondent
Criminal Appeal (SJ) No. 470 of 2015
Decided On : 28-06-2016
For the Appellant : Mr. Prakash Tewari.
For the Respondents: Mr. S.D. Sanjay, Mr. Rakesh Kumar Sinha and Mrs. Priya Gupta.
Headnote:
Narcotic Drugs and Psychotropic Substances Act - Conviction under Section 20(b)(ii)(c) and Section 23(c) - Summary of Acts and Sections: The court discussed the provisions of Section 20(b)(ii)(c) and Section 23(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, which deal with punishment for contravention in relation to cannabis plant and cannabis respectively. The court analyzed the evidence and legal formalities related to the seizure, sampling, and certification of the narcotics, and the compliance with the provisions of Section 52A of the Act. The court also considered the confession made by the accused and its admissibility as evidence.
Fact of the Case:
The appellant was convicted for the offence under Section 20(b)(ii)(c) and Section 23(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The prosecution case involved the apprehension of a tank-lorry containing contraband Ganja and the subsequent legal proceedings related to the seizure, sampling, certification, and destruction of the narcotics. The appellant denied knowledge and conscious possession of the contraband Ganja, and the case involved the examination of witnesses and documentary evidence.
Finding of the Court:
The court found that the prosecution failed to prove the charges beyond all reasonable doubts. The court highlighted discrepancies in the evidence related to the seizure, sampling, and certification of the narcotics. The court also emphasized that the confession made by the appellant was exculpatory in nature, indicating that the appellant denied involvement in the crime. The court further noted the lack of compliance with the provisions of Section 52A of the Act, which affected the admissibility of evidence.
Issues: The issues involved in the case included the admissibility and reliability of the evidence related to the seizure, sampling, and certification of the narcotics, the voluntariness and admissibility of the confession made by the appellant, and the compliance with the legal formalities prescribed under the Narcotic Drugs and Psychotropic Substances Act, 1985.
Ratio Decidendi: The court held that the prosecution failed to establish the guilt of the appellant beyond all reasonable doubts. The court emphasized that the confession made by the appellant was exculpatory in nature and did not amount to a voluntary confession. The court also highlighted the non-compliance with the provisions of Section 52A of the Act, which affected the admissibility of evidence and legal formalities related to the seizure and certification of the narcotics.
Final Decision: The judgment of conviction and order of sentence passed by the trial court were set aside, and the appeal was allowed in favor of the appellant.
Gopal Prasad, J.
1. The sole appellant has been convicted for the offence under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the Act") and sentenced to undergo rigorous imprisonment for ten years with a fine of Rs. 1,00,000/- and in default of payment of fine to undergo rigorous imprisonment for six months. He has further been convicted for the offence under Section 23(c) of the Act and sentenced to undergo rigorous imprisonment for ten years with a fine of Rs. 1,00,000/- and in default of payment of fine to undergo rigorous imprisonment for six months. However, it has been ordered that both the sentences shall run concurrently.
2. The prosecution case is that the informant Arvind Kumar Mishra (PW-1), who happens to be the Inspector, Land Custom Station, Raxaul, filed an official complaint under Section 36A of the Act, alleging therein that acting on an specific information, that a tank-lorry bearing registration no. WB-39/8823 concealing contraband Ganja in the chambers of the tank-lorry was expected to cross Indian Boarder through Boarder post at Raxaul from Birganj (Nepal) in the morning hours of 16.09.2009. The Custom Officers of the Land Custom Station, Raxaul, were put on alert, as a result of which, the said tank-lorry was intercepted on 16.09.2009 at about 08:00 hours while just crossing the Boarder Check-Post at Raxaul. On being signaled the said vehicle stopped and the driver of the said tank-lorry, namely, Shiv Shankar Dixit (appellant) was asked to get his vehicle searched. The driver replied that the tank-lorry is empty and showed his reluctance, which further led to suspicion. Then, the driver was asked to get off from the vehicle and also get it searched. Before commencing the search, two independent witnesses of nearby localities available there were requested to witness the search operation to which they agreed. Upon search, it was found that a large number of rectangular packets were secreted in the three out of four chambers of the said vehicle, keeping one chamber of the rear portion empty, ostensibly to dodge the Customs as well as other enforcement agencies, as revealed by the driver in his statement recorded during search and seizure. Few packets were taken out from the chambers of the tank-lorry and they were opened in presence of the two independent witnesses and the driver of the said tank-lorry. The packets so opened appeared to have contained Ganja with characteristic pungent smell. Then the said vehicle was thoroughly searched in presence of the Superintendent (Preventive) and other witnesses and all the packets were found secreted in the three chambers of the tank-lorry which were unloaded in presence of the driver of the said vehicle and the two independent witnesses. During the search of the cabin of the said vehicle, some documents were also recovered i.e. papers relating to said tank-lorry along with the Driving Licence of the driver Shiv Shankar Dixit. Total 249 rectangular packets of different size and weight of contraband Ganja (in moist condition, wrapped with papers, plastic sheets and tied with Sutli) were recovered from the three chambers of the said tank-lorry. The same were quantified and weighed before the said driver and two independent witnesses. The gross weight of Ganja was found to be 2422 Kgs. and the net weight as 2230 Kgs. The value of Ganja was ascertained @ Rs. 2000/- per Kg. as Rs. 44,60,000/-, the said tank-lorry was also valued at Rs. 7,50,000/-. It is further alleged that in presence of the Superintendent (Preventive) and other witnesses, the above recovered Ganja and the vehicle were seized on 16.09.2009 at 16:00 hours under the provisions of Section 43 of the Act for violation of Section 8 of the Act under reasonable belief that the same is liable to confiscation under the provisions of Section 60 of the Act a
