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IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHUTOSH KUMAR and VIPUL M. PANCHOLI, JJ.
Criminal Appeal (DB) Nos. 1081, 865 of 2019
(8.8.2023)
Seikh Imtiazuddin @ Giyasuddin
& Anr. (in 1081)
Seikh Wazid (in 865) ... Appellants
vs.
Union of India ... Respondent
(in both)
Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) – Sections 20(b) (ii) (c) & 23(c) – 8 kgs each of charas found from with the appellants of Cr. App. (DB) 1081/19 and 4 kgs from appellant of Cr. App. (DB) 865/19 – no effort though appears to have been made for intimating any Magistrate before whom the samples could have been drawn but that itself, would be no ground to disbelieve the correctness of the sampling procedure and sending it to the chemical laboratory for testing whether it is narcotic – only because a Magistrate was not present when samples were drawn, no other reasons to doubt the correctness of the prosecution version that the appellants were carrying narcotics with them the secret information led to the arrest of the appellants from whose possession, narcotics were recovered – the samples were drawn on the spot before the raiding team and were numbered appropriately – without any delay, the samples were sent to the chemical laboratory, which test report was in affirmation of the assertion that it was narcotics and not anything else – with due permission, the balance of the narcotic consignment was destroyed – all the members of the raiding team, who have been brought as prosecution witnesses, have specifically supported the prosecution case – thus, only for the absence of any independent witness having been examined at the trial, the case against the appellant cannot be doubted – however, only because of the difference in weight of the narcotics held by each one of the appellants, they ought not to have been sentenced separately – breach of law is always a breach of law and in the present case, even the lower quantity of 4 kgs of charas would be more than the commercial quantity, which was possessed by the appellant/Seikh Wajid, who have been sentenced for 10 years, wheres other two appellants for 12 years u/s 20(b) (iii) (c) of the NDPS Act – sentence of those two appellants of Cr. App. (DB) No. 1081/19 modified to 10 years from 12 years – there being no evidence for conviction u/s 23 (c) of NDPS Act, conviction and sentence u/s 23 (c) of NDPS Act set aside – Appeals dismissed with partial modification in sentence. (Paras 35, 37, 40, 44 to 53)
(2016) 3 SCC 379, (2020) 9 SCC 627, (2020) 2 SCC 563, (2001) | SCC 652 (2018) 17 SCC 627, (2020) 10 SCC 120 – Referred.
Ashutosh Kumar, J. – Both the appeals, namely, Criminal Appeal (DB) Nos. 1081 of 2019 and 865 of 2019 have been taken up together and are being disposed of by this common judgment.
2. Mr. Sunil Kumar No. III has appeared for the appellants, viz., Seikh Imtiazuddin @ Giyasuddin and Sujay Das in Cr. Appeal (DB) No. 1081 of 2019, whereas Mr. Sourendra Pandey has appeared for the appellant, viz., Seikh Wajid in Criminal Appeal (DB) No. 865 of 2019.
3. Four persons have been put on trial including the appellants, out of whom, only three persons (appellants herein) have been convicted and the fourth accused person, namely, Govind Magar has been acquitted by the Trial Court.
4. All the three appellants have been convicted under Sections 20(b)(ii)(c) and 23(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred as the N.D.P.S. Act) vide judgment dated 31.05.2019 passed by the learned 1st Additional Sessions Judge, East Champaran at Motihari in N.D.P.S. Case No. 70 of 2017, CIS No. 221 of 2016 and by order dated 10.06.2019, appellants/Seikh Imtiazuddin @ Giyasuddin and Sujay Das have been sentenced to undergo R.I. for 12 years, to pay a fine of j 1 lakh each and in default of payment of fine, to further undergo R.I. for 6 months for the offence under Section 20(b)(ii) (c) of the N.D.P.S. Act. Appellant/Seikh Wajid has been sentenced to undergo R.I. for 10 years, to pay a fine of j 1 lakh and in default of payment of fine, to further suffer R.I. for 6 months for the offence under Section 20(b)(ii)(c) of the N.D.P.S. Act. All the three appellants have been sentenced to undergo R.I. for 10 years, to pay a fine of j 10,000/- each and in default of payment of fine, to further undergo R.I. for 6 months for the offence under Section 23(c) of the N.D.P.S. Act. The sentences have been ordered to run concurrently.
5. It appears to us that because 8 kgs. of charas was found in possession of appellants/Seikh Imtiazuddin @ Giyasuddin and Sujay Das and 4 kgs. from the appellant/Seikh Wajid, therefore, some distinction has been made with respect to the sentencing.
6. Manoj Kumar (PW-2) is the complainant of this case, who has alleged that he had received a secret information on 27.08.2017 at about 09:30 hours that four accused persons are trying to smuggle in charas from Kathmandu via Raxaul. The news was again confirmed by at around 10 O’clock in the day. He, in his capacity as an Inspector, Land Customs Station, directed for putting up a barrier at a place near the border for arresting the accused persons. The team which was constituted, spotted a tonga (a carriage drawn by a horse), which was signalled to stop. Four persons were found to be occupying the said tonga excluding the person driving it. Two of the persons from the neighborhood were requested to become the witnesses to the search and seizure procedure, both of whom have not been examined at the trial nor their names have been disclosed in the complaint referred to above. The three appellants were found keeping something concealed in their respective bodies, which necessitated their personal search.
7. The complaint further discloses that a notice was given to them under Section 50 of the N.D.P.S. Act for their personal search, intimating to them that they had the option of having themselves searched before any Magistrate or Gazetted Officer of the Customs.
8. Since all of them agreed to be searched in front of the Custom Officials, they were searched and from the possession of the appellants, a total of 20 kgs. of charas was recovered. Seikh Imtiazuddin @ Giyasuddin and Sujay Das (Cr. Appeal (DB) No. 1081 of 2019) were keeping 8 kgs. of charas each on their bodies, whereas Seikh Wajid (Cr. Appeal (DB) No. 865 of 2019) was found to be in possession of 4 kgs. of charas. Some small amount of cash also was recovered from them, the details of which have been provided in the complaint. Such money was never retained by the Customs Department, but returned to their respec
Compliance with mandatory provisions of the NDPS Act is essential for conviction; however, the absence of independent witnesses does not automatically discredit credible police testimony.
Non-compliance with mandatory provisions of the NDPS Act and lack of corroboration from witnesses can vitiate the conviction.
Non-compliance with the procedure for drawing up the sample of the narcotic, lack of compliance with the prescribed procedure under the NDPS Act, 1985 at all the stages, and the case being based on t....
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