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2007 DIGILAW 574 (PAT)

Kenjengbam Arun Singh v. Union Of India

2007-03-20

SHIVA KIRTI SINGH, SUBASH CHANDRA JHA

body2007
Judgment 1. The sole appellant is aggrieved by his conviction under S. 20(b)(ii)(c) of the NDPS Act for which he has been awarded RI for 13 years and a fine of Rs. 1,00,000.00 (One Lac) in lieu whereof he is to undergo a further imprisonment of one year R.I. The impugned judgment dated 18th March, 2006 has been rendered by learned Additional District and Sessions Judge-cum-Special Judge, NDPS Act, Kishanganj in Special Case No. 8 of 2001/trial No. 05/2001 which arises out of Kishanganj Unit Case No. 21, NDPS Act/KNE/2001. 2. According to the prosecution, essential facts in brief are that on 23rd March, 2001 officials of the Custom Department, Kishanganj received a telephonic information that contraband ganja was being transported from Imphal to Calcutta by a bus bearing Registration No. MN-04/5255 via Kishanganj. On receipt of the information the Superintendent of Customs constituted a preventive team and the advance team of preventive officers located the bus in question at about 5:15 a.m. when it was passing through Faring Gola on NH-31. After chase it was intercepted at Khagra Railway Crossing, Kishanganj. After disclosing their identity the preventive officers gave their identification and purpose of checking the bus. On option to get the bus searched before a Magistrate or a Gazetted Officer, the driver declined the offer of search by a Magistrate. During the search and checking some passengers came out of the bus to attend call of nature but one of the passengers tried to escape but was apprehended after chase. He disclosed his identity as K. Arun Singh, the appellant. On interrogation he admitted all the relevant and vital facts regarding ownership of the ganja and its being transported by the bus in conspiracy with owner of the bus. On such disclosure and confession that the ganja was being transported in a secret chamber under the floor of the bus, on request of the driver, khalasi and the accused, the bus was brought for search to premises of the Custom Office for safety and there two independent witnesses were called from nearby places because passengers did not agree to become witnesses as they were from different States. During search the floor of the bus was broken and from secret cavity smell of ganja was located and 225 kilograms of ganja wrapped in packets valued at Rs. 4,50,000.00 was recovered. During search the floor of the bus was broken and from secret cavity smell of ganja was located and 225 kilograms of ganja wrapped in packets valued at Rs. 4,50,000.00 was recovered. The preventive officers of the Custom Department seized the recovered ganja as also the bus and a panchnama and a seizure list was prepared in presence of driver, khalasi, independent witnesses and the accused-appellant and they put their signatures on those papers. The samples were taken as per law and sent for chemical examination. The driver, khalasi and the accused-appellant gave their voluntary statements and later on they were also subjected to interrogation by the Superintendent of Custom (P.W. 2) before whom they confessed their guilt and disclosed the name of the owner of the bus and that he also had full knowledge of the transportation of ganja. The driver, khalasi and the accused-appellant were arrested and the facts were reported to the authorities concerned for further action and after receiving their orders and directions complaint petition was filed, cognizance taken and the case was tried only against the accused-appellant. Apparently, the case against other persons was separated because they could not be made available to face trial. 3. During trial the prosecution examined 20 witnesses to prove the charge against the accused-appellant. P.W. 1 is a seizure list witness who has proved his signatures on the seizure list, panchnama and voluntary statements of the accused-appellant which have been marked as Exhibits 1, 1/1 and 1 /2 respectively. He has also proved his signature on the interrogatory statement of the appellant which has been marked as Exhibit 1/5. But he has stated that no vehicle was seized on the relevant date and no interrogation was made of accused persons. He was therefore declared hostile. 4. P.W. 2 is Ratan Kumar Mishra, Superintendent, Customs who has supported the prosecution case in all material particulars. He has supported the seizure of 225 kilograms of ganja valued at Rs. 4,50.000/-, preparation of seizure list, panchnama and has claimed that he interrogated the accused and driver and khalasi and they had put their signatures on the interrogatory statements. He has proved those statements as Exhibits 2 to 2/1. He has supported the seizure of 225 kilograms of ganja valued at Rs. 4,50.000/-, preparation of seizure list, panchnama and has claimed that he interrogated the accused and driver and khalasi and they had put their signatures on the interrogatory statements. He has proved those statements as Exhibits 2 to 2/1. He has also stated that accused-appellant gave his voluntary statement and after that the sample of seized ganja was taken and sent to the approved laboratory for chemical analysis from where report was received showing the samples to be ganja. This witness also identified the accused-appellant. In cross-examination he disclosed that he received information with specific bus number on telephone and this information was recorded In the movement register and thereafter he constituted a team which was sent to locate the bus. He has further deposed that seized ganja was weighed in the Customs office. 5. P.W. 3, Pramod Chandan Surin, Inspector, Central Excise was posted as such on the relevant date at Kishanganj. He has also fully supported the prosecution case in all material particulars. He has proved the seizure list as Exhibit 3 and the panchnama as Exhibit 4. P.W. 4, Sanjay Kumar has proved voluntary statement of the accused-appellant which was In his writing as Exhibit 6. As a writer he has also proved the interrogatory statement of the accused-appellant as Exhibit 7. This witness could not identify the accused and stated that nothing was recovered in his presence. 6. P.W. 5, Ranjan Kumar, P.W. 6, Satish Kumar Singh, P.W. 7, Krishna Kumar Mishra, P.W. 8, Naresh Chaudhary, P.W. 9, Baban Kumar, P.W. 10. Vijay Kumar Gupta, P.W. 11, Md. Shahid Imam are Constables of the Customs Department and were members of the preventive party. They have supported the search of the bus and seizure of 225 kilograms of ganja. The statement by these witnesses in their cross-examination do not in any manner affect the prosecution case. 7. P.W. 12, Ashok Kumar Das was posted as Inspector Custms Department at Kishanganj on the relevant date. He has fully supported the prosecution case in all material particulars from the stage of apprehension of the bus till seizure of 225 kilograms of ganja and preparation of seizure list as well as voluntary statements of the accused persons In which they confessed their guilt. 8. He has fully supported the prosecution case in all material particulars from the stage of apprehension of the bus till seizure of 225 kilograms of ganja and preparation of seizure list as well as voluntary statements of the accused persons In which they confessed their guilt. 8. P.W. 13, Shiv Narayan Prasad has also supported the prosecution case as a member of the preventive team In the capacity of Inspector. P.W. 14, K. N. Vishwakarma was also a member of the preventive team as an Inspector. He is also the complainant in this case. He has supported the prosecution case and has proved his signature on the voluntary statement of the accused person which has been marked as Exhibit 1/8. He has proved the complaint petition as Exhibit 1/A. Nothing has been elicited in his cross-examination so as to discredit the prosecution case. P.W. 15, Shyam Bihar Singh, P.W, 16, Ramjeet Ram, P.W. 17, Pradeep Kunwar, P.W. 18, Rameshwar Ram and P.W. 19, Raj Kumar were also members of the preventive team as Constables. They all have supported the prosecution case In their examination-in-chief but in cross-examination they have given some answers which appear to be an attempt to give some help to the accused by saying that he was actually driving the vehicle and that ganja was identified at the time of seizure by smell and not by an expert. Such replies In cross-examination by these Constables cannot discredit the prosecution case which has been supported by several other witnesses including a Gazetted Officer of the Customs Department. 9. P.W. 20, Rabindra Nath Pathak was also a member of the preventive team as an Inspector, He has also deposed that Inspector P. C. Surin, R. N. Pathak, K. N. Vishwakarma, Superintendent, R. K. Mishra and 8 to 10 Constables were also in the preventive team. He has fully supported the prosecution case in all material particulars and has asserted that seizure was made in his presence. 10. Besides the oral evidence of all prosecution witnesses noticed above, the confessional statement of the accused-appellant as well as his interrogatory statement which are contained in Exhibits 6 and 7 are documentary evidence on which prosecution has relied and considering all such materials the accused-appellant has been convicted and sentenced as noticed earlier. 11. 10. Besides the oral evidence of all prosecution witnesses noticed above, the confessional statement of the accused-appellant as well as his interrogatory statement which are contained in Exhibits 6 and 7 are documentary evidence on which prosecution has relied and considering all such materials the accused-appellant has been convicted and sentenced as noticed earlier. 11. On behalf of the appellant it was submitted that (1) seizure has not been reliably-proved because independent witnesses have not supported the fact of seizure and (2) the statements of the appellant marked as interrogatory statement and confessional statement are not voluntarily and, therefore, there is no evidence to connect the seized ganja with this appellant. 12. No doubt, PWs-1 and 4 have been examined as the independent witnesses to prove the seizure list and PW-1 was declared hostile after he stated that the three arrested accused were not interrogated in his presence. But he has admitted his signatures on the seizure list as well as panchnama. The documents on which his signature have been proved contain voluntary statements as well as interrogatory statements of the accused persons. Those statements have been recorded by PW-4, Sanjay Kumar acting as a scribe only and he has also supported the interrogation of the accused persons by the Superintendent of Customs who has been examined as PW-2 and has supported the fact that he interrogated the accused persons and the interrogation was recorded by PW-4, merely as a writer. PW-4, as noticed earlier has proved the voluntary statement of the accused appellant as Exhibit-6 and his interrogatory statements as Exhibit-7. A perusal of Exhibits-6 and 7 shows that the accused-appellant admitted the seizure of 225 kilograms of ganja belonging to him from a cavity under the floor of the bus. As noticed by the trial Court the accused did not resile from such confession at the earliest opportunity and a perusal of his statement under Sec.303 Cr. P. C. also shows that he has not denied his voluntary or interrogatory statement on which he has signed. He has not even made any statement to show that his signature was obtained by coercion or deceit or any such means. Hence in this case, there is no good reason to doubt the seizure of the contraband ganja weighing 225 kilograms from a secret cavity in the bus in question. He has not even made any statement to show that his signature was obtained by coercion or deceit or any such means. Hence in this case, there is no good reason to doubt the seizure of the contraband ganja weighing 225 kilograms from a secret cavity in the bus in question. From the aforesaid discussions, it is also clear that there is no material to accept the contention that the voluntary and interrogatory statement of the accused appellant was not voluntary. 13. A faint attempt was made by learned counsel for the appellant to raise an issue that seizure of the contraband ganja was not in accordance with requirements under the provisions of NDPS Act, 1985. On going through the materials on records, we find that on facts this submission has no legs to stand. It is found that the authorities of the Customs Department, particularly an Officer of Gazetted rank, such as Superintendent of Customs had sufficient powers to search and seize the contraband ganja by virtue of provisions under Sections 41, 42 and 43 of the aforesaid Act. The powers of a Gazetted Officer is particularly mentioned in Sec. 41(2) of the NDPS Act. Such power was noticed and accepted by Hon ble the Supreme Court in the case of M. Prabhulal V/s. Assistant Director, Directorate of Revenue Intelligence reported in (2003)8 SCC 449 : (2003 Cri LJ 4996). In the present case even the formalities required by Sec. 42 of the NDPS Act had been completed as per evidence of PW-2 when in fact the provisions of Sec. 43 would cover the action of the authorities as the seizure was made from a public vehicle in a public place. Hence we have no hesitation in holding that search and seizure in this case made by the authorities was in accordance with the provisions of NDPS Act. 14. In reply to the last submission on behalf of the appellant that he cannot be held to be in possession or conscious possession of the contraband ganja recovered from the secret chambers of the bus, learned counsel for the Union of India has rightly relied upon a judgment of the Hon ble Supreme Court in the case of Madan Lal V/s. The State of H. P. reported in (2003)7 SCC 465 : (2003 Cri LJ 3868). In that case the Apex Court examined the different meanings and colours of the expression "possession". It held that the word "possession" means the legal right to possession and in a given case it need not to be physical possession but can be constructive of a person having power or control over the article in question. A person who has been in physical possession of the article holds the same subject to the power of control of the person having legal right to possession. In the same judgment the word "conscious" was also discussed and it was held that this word means awareness about a particular fact and once possession is established, the person who claims that it was not a conscious possession has to establish it because how he came in possession is within his special knowledge. In support of such presumption reference was made to Sections 35 and 54 of the NDPS Act. In our view, in the facts of the case, the principles discussed and laid down in the aforesaid judgment hold the field and Exhibit-6 and 7 leave no manner of doubt that as owner of the contraband ganja the accused appellant was not only In possession but was in conscious possession of the same when the contraband ganja was searched and seized. 15. No further submissions remain to be examined. In the facts of the case, we find no infirmity either in facts or in law in the impugned judgment and therefore we confirm the conviction of the appellant as noticed above. However, on the question of sentence, learned counsel for the appellant submitted that in this case the prosecution would not have succeeded in fastening the guilt upon the appellant but for his candid confession and replies during interrogation on the basis whereof some other accused were also charge-sheeted. It has been submitted that the appellant whose confession has been relied upon has further stated that he is an unemployed youth having burden of maintaining his family as his father has already retired from bank service. Considering the aforesaid submissions and relevant facts and circumstances in our view the ends of justice would be satisfied if the period of rigorous imprisonment awarded to the appellant is reduced from 13 to 10 years, the legally permissible minimum sentence for the offence. Considering the aforesaid submissions and relevant facts and circumstances in our view the ends of justice would be satisfied if the period of rigorous imprisonment awarded to the appellant is reduced from 13 to 10 years, the legally permissible minimum sentence for the offence. As a result the sentence shall stand modified to RI for 10 years and a fine of Rs. 1,00,000.00 in lieu of which the appellant shall have, to undergo further Rl for six months. With this modification in the sentence the appeal stands dismissed.