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2007 DIGILAW 475 (CAL)

Jyengo Ghale v. STATE OF WEST BENGAL

2007-06-29

G.C.GUPTA, KISHORE KUMAR PRASAD

body2007
Judgment : KISHORE KUMAR PRASAD, J. (1.) The hearing stems from an appeal preferred against the judgment and order passed by the learned Judge, Special Court under N.D.P.S. Act, Barasat, North 24-Parganas in the Case No. 6 of 2000 on 30.09.2004 whereby the appellant herein was convicted and sentenced under Section 21 (c) of the N.D.P.S. Act to 14 years rigorous imprisonment and a fine of Rs. 1, 40,000.00, in default of payment of fine to further undergo 1 (one) year and 4 (four) months rigorous imprisonment. (2.) The prosecution case is based on a complaint (Exhibit-1) lodged by Sri Barinder Singh, Superintendent of Customs (Preventive), Intelligence Unit, N.S.C.Bose International Airport, Calcutta and the case made out in the said complaint may be summarised thus:- (a) Acting on a source information, a group of officers of customs, Air Intelligence Unit of N.S.C. Bose International Airport, Calcutta on 19.01.2000 at about 13.30 hours intercepted the appellant, an out-going passenger bound for Bangkok by Thai International Flight No. TG-314 at the International Departure Hall of N.S.C. Bose International Airport, Calcutta. Before interception, all the officers discussed everything with the Superintendent of their unit who directed the officers to search the baggage and person of the appellant after observing all the necessary formalities. The appellant was asked to declare whether he had anything contraband item including any Narcotic Drugs with him either in person or in his one piece of registered baggage. On being asked, the appellant replied in the negative, both orally and in writing. (b) Giving no reliance upon such statement, the officers decided to search his baggage and person for which he was offered option as required under Section 50 of the N.D.P.S. Act in writing to which he agreed to be searched before the Superintendent of Customs i.e., Gazetted Officer. The appellant declined to search the person of the Customs Officer who would search his person. (c) Two independent witnesses were called from the outside and thereafter in their presence and also in presence of the Superintendent of Customs and other officers as per provisions of N.D.P.S. Act, Sri Rakesh Kumar of A.I.U. started searching the personal baggage of the appellant, a moulded strolley bag of brand "Prestige" which the appellant himself opened by the key kept in his possession. (d) On search of the said baggage, 3.6 Kgs of blackish brown substance wrapped in polythene and carbon paper were recovered. The said substance was tested on the spot by the Drug Identification Kit and it responded positive to the test of Hashish. The said quantum of Hashish were covered in three (3) slab forms which were kept concealed in between the built in space at the bottom of the strolley bag made for the movement of the handle of the bag covered with cut pieces of cardboard, cartons masonite and inner cloth lining attached with the bag. (e) Failure on the part of the appellant to produce any legal and valid papers for possession of the said Hashish, the recovered quantum of Hashish, Strolley bag and the papers along with Air Ticket, baggage tag etc. were seized in presence of witnesses under seizure list on which the appellant, independent witnesses, Gazetted. Officer and the seizing Officer put their signatures and a copy of seizure list was duly supplied to the appellant. (f) Thereafter, samples in duplicate were drawn from the recovered Hashish and the same were kept in separate packets which were duly labelled, sealed and signed by the witnesses, appellant and the Superintendent of Customs. The rest quantum of Hashish was also kept in a separate packet and the same was duly sealed, labelled and signed by the appellant and the witnesses. (g) The appellant then served notice under Section 67 of the N.D.P.S. Act and under Section 108 of the Customs Act. The appellant made voluntary statement before the Superintendent of Customs on 19.01.2000 and 20.01.2000 wherein he admitted the fact of his possessing the contraband Hashish. (i) Thereafter, the sample drawn from the recovered and seized Hashish was sent to the Chemical Examiner, Chemical Laboratory, Custom House, Calcutta and the Chemical Examiner submitted his report certifying the existence of Hashish in the sample. (3.) On the basis of the aforesaid complaint and on consideration of the materials-on-record, charge was framed against the appellant under Section 21 of the N.D.P.S. Act. The appellant did not admit the charge and demanded trial. (4.) To substantiate its version, the prosecution examined 12 witnesses including the complaint, Barinder Singh (P.W.1). (3.) On the basis of the aforesaid complaint and on consideration of the materials-on-record, charge was framed against the appellant under Section 21 of the N.D.P.S. Act. The appellant did not admit the charge and demanded trial. (4.) To substantiate its version, the prosecution examined 12 witnesses including the complaint, Barinder Singh (P.W.1). In course of examination of P.Ws., the prosecution also produced documentary evidence i.e., Complaint, copy of Notice, Signature of P.W.No. 7 on statement of accused, Signature with endorsement on statement of the accused, Chemical Examination report, Section II of Chemical Report, Test Memo, Writing made in Nepali language, Translated version in English, Offer and acceptance of accused in Nepali language, English version, Search list, Signature on search list, Memo of arrest, Inspection Memo, Writing with Telephone Bill, Translated version, Baggage tag, Claim tax, Boarding pass, Declaration made by the accused, Translated version, passport, copy of test memo, Attested copy of godown register, Copy of notice under Section 67 of N.D.P.S. Act and Section 108 of Customs Act, Voluntary statement of accused, Signature of S.T. Bhutia, Signature of P.W.12, V.K. Pandey, Baggage and Sealed packets, which were marked as Exhibits 1 to 20 and Mat. Exhibits I to IV respectively. (5.) The statement of the appellant was recorded under Section 313 of the Cr.P.C. The appellant alleged that he had come to Calcutta for searching a job with a person; that his signature was obtained forcibly and he had never made any confessional statement. No evidence was adduced in defence. (6.) The learned Trial Judge after considering the oral and documentary evidence as well as submissions made on behalf of the parties found the appellant guilty under Section 21 (c) of the N.D.P.S. Act and convicted him accordingly and sentenced him to undergo rigorous imprisonment for 14 years and to pay a fine of Rs. 1,40,000.00 in default, to further undergo one year and four months rigorous imprisonment. (7.) Being aggrieved by and dissatisfied with the said order of conviction and sentence, the appellant has preferred the present appeal. (8.) All that now requires to be considered is whether the learned Court below was justified in passing the above order of conviction and sentence. (9.) No argument was advanced by the learned Counsel for the appellant before this Court challenging the order of conviction and sentence awarded by the learned Trial Court. (8.) All that now requires to be considered is whether the learned Court below was justified in passing the above order of conviction and sentence. (9.) No argument was advanced by the learned Counsel for the appellant before this Court challenging the order of conviction and sentence awarded by the learned Trial Court. Learned Counsel appearing for the appellant at the hearing of this appeal before this Court confined his argument only towards quantum of sentence awarded by the learned Trial Court. We have heard the learned Counsel for the parties on the point of quantum of sentence. (10.) As regards the search and seizure of 3.6 Kgs of contraband substance that is Hashish, there was adequate evidence coming through the witnesses examined in this case. We do not think it necessary to deal with that aspect in more details as there no argument advanced before us on that aspect. It is true that the witnesses to the search and seizure happen to be the official witnesses but that by itself cannot be the ground to impeach their evidence with any distrust. As a matter of fact, we have found the official witnesses touching the search and seizure to be reliable one. We do not find any material to disbelieve the official witnesses touching the search and recovery of contraband substance (Hashish) weighing 3.6 Kgs from the baggage possessed by the appellant. They have detailed the occurrence and identified the appellant as the participant in the crime. A small contradiction here and there about the timings or the preparation of test report could not make the testimonies of the witnesses doubtful. Minor discrepancies are very natural to occur in the testimony of different witnesses and the testimony of a witness cannot be rejected on the ground that there were minor discrepancies or contradictions. That apart, there is nothing on record to show that the official witnesses touching the search and seizure had hostility towards the appellant. It is well settled that the testimony of the official witnesses not to be discarded or disbelieved merely on the ground that they happen to be the official witnesses. Public servant must be assumed to act honestly and conscientiously. It would therefore, be basically wrong without cogent ground to consider them untrustworthy witnesses in respect of their activities in performance of their official duties merely because of their official status. Public servant must be assumed to act honestly and conscientiously. It would therefore, be basically wrong without cogent ground to consider them untrustworthy witnesses in respect of their activities in performance of their official duties merely because of their official status. Apart from the aforesaid considerations, the facts of search and recovery of contraband substance from the baggage possessed by the accused/appellant stand corroborated by the search-cum-seizure list, copy of which had been handed over to the appellant after seizure and also by the statement of the appellant recorded under Section 67 of the N.D.P.S. Act and under Section 108 of the Customs Act. It is true that the said statement was made while the appellant under the control of customs officer but that by itself cannot be regarded as sufficient to hold that the statement was made by the accused under the pressure of compulsion. No complaint was made by the appellant when he was produced before the learned Trial Court on 20.01.2000. (11.) In Naresh J. Sukhawani v. Union of India, AIR 1996 SC 522 , the view taken by the Apex Court is that the statement of the accused before the official recorded under Section 108 of the Customs Act is not a statement recorded under Section 161 of the Cr.P.C. and therefore, it can be used as a substantive evidence connecting the accused with the contravention of the provisions of the Act and the co-accused. In Pon Adithan v. Deputy Director, 1999 Criminal Law Journal 3663 (SC) the principle laid down is that the statement of the accused can be taken as a piece of evidence for the purpose of corroboration of the evidence let in by the Arresting Officer or the officer who searched the accused. In the instant case, the conviction of the appellant is not based solely on the confessional statement. Even if the confessional statement is not taken into account, the rest of the evidence is sufficient to prove the guilt of the appellant. (12.) Apart from the aforesaid considerations, there is evidence to show that the sample taken from the seized contraband substance was sealed and labelled on the spot in presence of the appellant and the witnesses and the same was sent to Chemical Examiner (P.W.9) for analysis and report. (12.) Apart from the aforesaid considerations, there is evidence to show that the sample taken from the seized contraband substance was sealed and labelled on the spot in presence of the appellant and the witnesses and the same was sent to Chemical Examiner (P.W.9) for analysis and report. According to the evidence of the Chemical Examiner, the sample received by him along with the test memo was blackish brown coloured substance which was analysed by him and it was responded to the test of Hashish. In view of the said fact it is safe to conclude that there was actually seizure of Hashish weighing 3.6 Kgs from the baggage carried by the appellant. (13.) In the circumstances, the conviction entered against the appellant for the offence under Section 21 (c) of the N.D.P.S. Act deserves to be confirmed. We do so. (14.) In so far as sentence of imprisonment and fine are concerned, the appellant has been sentenced to undergo rigorous imprisonment for 14 years and also to pay fine of Rs. 1,40,000.00 and in default, in the payment of fine to undergo rigorous imprisonment for a period of one year and four months. For imposing such imprisonment and fine, the learned Trial Judge has considered the family background and age of the appellant Learned Counsel for the appellant submitted that the appellant is the first offender of such offence; that his family consists of his father only and he is the only bread-earner of his family. Learned Counsel appealed to this Court for reducing the sentence. Learned Counsel appearing on behalf of the respondent submitted that he has nothing to say about the actual sentence to be imposed. (15.) The offence the appellant is found to have committed is serious in nature and this type of offence is gradually increasing in the society and spoiling the youth generation causing bad effects to the society at large. At the same time, the Court cannot oblivion to the family circumstances of the appellant, his age etc. It is evident from the Lower Court record that the appellant has been in judicial custody during the entire period of enquiry and trial that is since 20/1/2000. At the same time, the Court cannot oblivion to the family circumstances of the appellant, his age etc. It is evident from the Lower Court record that the appellant has been in judicial custody during the entire period of enquiry and trial that is since 20/1/2000. (16.) Striking the balance between the two and in consideration of the submissions of the learned Counsel appearing for the appellant and also the reasons recorded by the learned Trial Judge in imposing the above punishment, we feel that the ends of justice shall amply be met if the sentence of imprisonment can be reduced to 1-2 years and the fine can be reduced to Rs. 1,00,000.00 and in default of payment of fine to undergo rigorous imprisonment for one year. (17.) In the result, the conviction under Section 21 (c) of the N.D.P.S. Act is affirmed. In so far as sentence of 14 years is concerned, it is reduced to 12 years rigorous imprisonment and in so far as the fine of Rs. 1,40,000.00 is concerned, it is reduced to an amount of Rs. 1,00,000.00 and in default in the payment of fine to undergo rigorous imprisonment for one year. (18.) With the above modification in the sentence, the appeal stands dismissed. The learned Trial Court will issue necessary revised, warrant as required by the Rules. Lower Court Record with a copy of this judgment to go down forthwith to the learned Trial Court for information and necessary action.