2003 Supreme(Guj) 99

Gujarat High Court
Judgename :A.M.KAPADIA, H.H.MEHTA
HUSEN BHENU MALAD - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL 193 of 1997
Decided On : 02/26/2003

Headnote:

Constitution of India - Article 20 (3) - Code of Criminal Procedure, 1973 - Section 374 (2), 313 - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 36-B, Section 20 (b) (ii) read with Section 29,67,20,23,30,57, Sections 20 (b) (ii), 23, 29, 30 and 42 - Custom Act - Section 108 - Appeal which is filed under Section of the Code of Criminal Procedure (the Code for short) read with Section of the Narcotic Drugs and Psychotropic Substances Act through jail is directed against a judgment and order dated rendered by Special Judge in Special Case by which appellants/original accused the accused for short have been convicted of the offences under Section read with Section of the NDPS Act and sentenced to undergo years and fine for two years whereas A-1 and A-4 have also been convicted of the offences punishable under Section read with Section of the NDPS Act and sentenced to undergo years and fine of S. I. for two years - It is also ordered by the learned Special Judge that both the sentences awarded to A-1 and A-4 to run concurrently and all the five accused are given the benefit of set-off - Judge and, therefore it is not expedient to repeat the same all over again in verbatim and in detail in this judgment - Basic facts which are necessary to be discussed in this appeal are that P. W. 1 Officer Commanding BSF Water Wing, in company of, S. I. , A. K., Head Constable, Engine Driver Singh and other officers while patrolling creek area at about 4. 30 P. M. saw a wooden boat having engine, in a suspicious condition - When the boat of B. S. F. was seen by the persons fishing in the wooden boat, they tried to run away with their boat - Since the BSF personnel had a high-speed boat they reached at the wooden boat within 5/6 minutes - Said wooden boat was stopped at the creek by the BSF officers and the persons who were found in the boat were directed to be alighted from it - In the said boat there were five persons. Upon preliminary inquiry they stated that they were citizens and they were doing fishing illegally in the water of Indian territory. In the meanwhile because of low tid water level receded and the wooden boat in which they were fishing was kept stationary there - Night halt was done there near the creek and all of them were placed under the surveillance of the guards - P. W. 1 and other BSF officers reached around and alighted there from the boat along with them. During the inquiry made by P. W. 1 with them, he informed them that if they give information regarding smuggling or some illegal activities which may be known to them, they would be released - Thereupon they told that if they were to be released they would show something to the BSF personnel. Thereupon A-1 was taken in the BSF Boat with PW 1 and they went in creek area - Held, Opinion that the prosecution case against the accused has been fully established. P. W. 1 who caught the accused while fishing illegally in the water of Indian territory has clearly deposed before the Court regarding the incident and recovery of the contraband article - At the instance of A-1. In his cross-examination nothing inconsistent was brought out by the advocate for the accused. His oral testimony is corroborated by oral testimony of P. W. 4 as well as that of P. W. 3. witnesses have supported all the formalities regarding preparation seizure and drawing of sample handing over of the goods by BSF officers to Customs authorities and the statements of the accused recorded under Section of the NDPS Act and Section Customs Act which were voluntary and genuine in nature, recorded without any threat, coercion, duress or undue influence which were never retracted by them and also got corroboration from other evidence - there is no escape from the conclusion about the guilt of the accused - We are therefore of the considered opinion that the learned trial Judge has considered all these aspects properly and correctly held the accused guilty and rightly convicted and sentenced them - Learned advocate for the accused has referred to reported decisions of the Supreme court as well as various High Courts during the course of his submission which we have noted in earlier paragraphs of this judgment - Since the ratio laid down by the Supreme Court as well as other High Courts in those reported decisions rested on the facts of those cases and interpreted the statutory provisions contained under various provisions of the NDPS Act and thus they are not applicable to the facts of the present case and, therefore - We do not find any infirmity in the impugned judgment and order - We are in complete agreement with the finding ultimate conclusion and resultant order of conviction and sentence recorded by the learned trial judge as, according on the facts and in the circumstances of the present case, no other conclusion is possible except the one reached - Justifiable ground to interfere with the impugned judgment and order of conviction and sentence - Hence the appeal lacks merit and deserves to be dismissed - Appeal fails and accordingly it is dismissed.