Research › Search › Judgment

Patna High Court · body

2011 DIGILAW 471 (PAT)

Madhu Khan v. State Of Bihar

2011-03-30

GOPAL PRASAD, SHIVA KIRTI SINGH

body2011
JUDGEMENT 1. This appeal is directed against judgment and order dated 12th August 2009 whereby the learned 9th Additional Sessions Judge, Muzaffarpur convicted the appellant for offence punishable under Section 20(b) (ii) (c) of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and awarded sentence of rigorous imprisonment for fourteen years together with fine of Rs.2 lacs. For default in depositing the fine the appellant will have to undergo further imprisonment for two years. 2. According to the prosecution case the Customs Division, Muzaffarpur on 29.09.2003 at 8.00 hours received a telephonic message that 100-150 kilograms of Ganja sealed in a cavity in the back side of jeep bearing Registration No. UTZ 180 is scheduled to proceed from Dhaka (East Champaran) towards Dorikganj Ghat, Chapra. Under one M.P. Singh, Inspector (Prevention) a team was rushed towards Motihari Road after discussion with Superior Officers. After reaching Motipur the team led an ambush and it noticed the said jeep on 20.09.2003 at 1700 hours. It was stopped and three persons including the driver of the jeep Tuntun Rai, this appellant and one Md. Javed Khan were found in the jeep. On examination, the team spotted the cavity which was screw fitted and detected smell of Ganja. On account of concern for security and lack of tools for opening the cavity the jeep along with three occupants and two Punches were brought to Customs Division Office at Muzaffarpur. The cavity was opened before the two Punches and it yielded 14 packets of Ganja whose gross weight was 108 kilograms, valued at Rs.2,14,000/-. The same was seized along with the jeep which was valued at Rs.2 lacs. The occupants gave confessional statements that they were involved in carrying of Ganja from Nepal as per their statement recorded before Custom Officers. 3. Further case of the prosecution is that three samples were drawn from the seized Ganja in presence of the Panches and the accused and sent to Government Testing Laboratory at Ghazipur and Neemuch on 01.10.2003 for chemical examination. The result of chemical examination dated 21.10.2003 from Government Opium & Alkaloid Works, Ghazipur showed the sample to be Ganja. After recording the Interrogatory Statement under Section 67 of the Act and completing other formalities a complaint was filed against the appellant and two others before the Court of District & Sessions Judge, Muzaffarpur. The result of chemical examination dated 21.10.2003 from Government Opium & Alkaloid Works, Ghazipur showed the sample to be Ganja. After recording the Interrogatory Statement under Section 67 of the Act and completing other formalities a complaint was filed against the appellant and two others before the Court of District & Sessions Judge, Muzaffarpur. On 14.11.2003 by Kundan Kumar Jha, Inspector of Customs Division, Muzaffarpur arising out of Customs Case No. 75/2003-2004 dated 29.09.2003. 4. After taking cognizance of offence punishable under the provisions of Act the Sessions Judge transferred the case to the court of Additional Sessions Judge-IV, Muzaffarpur. In the judgment under appeal it is recorded that the trial of this appellant was separated because the other two accused absconded. 5. From the arguments advanced on behalf of the defence and from the statement of the appellant recorded under Section 313 of the Cr.P.C. it appears that the appellant has claimed his innocence by raising a defence that he was mere passenger on the jeep and had no knowledge of or any concern with the alleged contraband Ganja allegedly seized from the jeep. Thus, there is no dispute with the prosecution case in general and the arguments advanced on behalf of the appellant are mainly against legality of the seizure and denial of conscious possession of contraband Ganja. When the appellant denied preparation of any seizure list before him under Section 313 Cr.P.C. then a specific question was put to him about his signature on the seizure list (Ext-1) and also his signature on his self statement contained in Ext-2 series and Interrogatory Statement in Ext-3 series, he admitted his signatures on the relevant exhibits although there is some apparent error in mentioning the specific exhibit numbers in Exts-2 and 3 series. 6. In order to prove the charges, the prosecution has examined altogether 12 witnesses which include PW-1, Kundan Kumar Jha, the complainant, PW-2, M. P. Singh, Inspector and leader of the team and PW-3, Dilip Kumar, another Inspector of Customs. PW-4 to 7 and 9 to 11 are sepoys of Customs Department who were part of the team. PW-12, Bijay Singh is driver of the Department who had participated in interception of the seized jeep. PW-8, Prem Kumar is an independent witness of seizure who has also supported the prosecution case. PW-4 to 7 and 9 to 11 are sepoys of Customs Department who were part of the team. PW-12, Bijay Singh is driver of the Department who had participated in interception of the seized jeep. PW-8, Prem Kumar is an independent witness of seizure who has also supported the prosecution case. On the basis of statement of the aforesaid witnesses the trial court has held the appellant guilty of the offence as noticed above. In general, the evidence of aforesaid witnesses support the prosecution case but learned counsel for the appellant took us through different paragraphs of their deposition to create a doubt as to why the seizure list and Panchnama were not prepared at the place of occurrence where the jeep was initially intercepted and instead it was prepared after the vehicle was brought to the Custom Office at Muzaffarpur. The witnesses are consistent and support the complaint case that the vehicle was brought to the Custom Office at Muzaffarpur and there the cavity was fully removed leading to recovery of the Ganja which was weighed and found to be 108 kilograms. No question has been put to the relevant witnesses as to why they did not make efforts to remove the cavity and recover the: Ganja on the highway itself but the explanation is obvious and finds mention in the complaint petition that such action was done out of security concerns and due to lack of adequate tools to remove the cavity which was screwed into the jeep. 7. In large number of cases under the Customs Act the same procedure is adopted by the officials because inspection of contraband articles covered under the Act and its weighing and seizure in open place cannot be free from risk. Often such activities are by organized gangs and the officials cannot be blamed for taking security precautions. Hence on the basis of arguments noticed above that the seizure ought to have made at the place where the jeep was intercepted, we are unable to doubt the seizure made by the Custom Officials after they brought the jeep to the Divisional Office at Muzaffarpur. 8. Another argument raised on behalf of the appellant is that chemical report is dated 21.10.2003 whereas the complaint was filed on 14.11.2003 and hence the prosecution case should be treated as doubtful on account of delay of 22 days. 8. Another argument raised on behalf of the appellant is that chemical report is dated 21.10.2003 whereas the complaint was filed on 14.11.2003 and hence the prosecution case should be treated as doubtful on account of delay of 22 days. In reply, learned counsel for Union of India has submitted that no- doubt the chemical report shows that it was prepared on 21.10.2003 but it must have taken some time for the report to reach the complainant at Muzaffarpur and no questions have been put to the complainant on this aspect of the matter nor the ground of delay was raised and argued before the trial court. It was further submitted that in such cases where all the formalities ought to be completed before lodging of a formal complaint, the delay pointed out above is not at all material and the defence has failed to show any prejudice caused to it on account of such alleged delay. We find substance in the argument advanced on behalf of the Union of India. 9. A plea was raised on behalf of the appellant that Sections 55 and 57 are mandatory as per judgment of the Apex Court in the case of Thandi Ram v. State of Haryana, (2001) 1 SCC 318 and according to learned counsel for the appellant, in this case also there is no material to show that the prosecution had complied with the provisions of Section 55 of the Act which requires an Officer In-charge of a Police Station to take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under the Act within the local area of the concerned Police Station and which may be delivered to the Officer In-charge. The judgment cited above is a short judgment but subsequently the same issue fell for consideration before the Apex Court in the case of Gurbax Singh v. State of Haryana, AIR 2001 SC 1002 : (2001 Cri LJ 1166) and it was held that provisions of Section 55 of the Act ate directory, violations of which would not vitiate, ipso facto, the trial or conviction. The same view was taken by a Division Bench of this Court in the case which was also cited on behalf of the appellant i.e. Ashok Kumar Pal v. State of Bihar 2002 (4) PLJR 787 . The same view was taken by a Division Bench of this Court in the case which was also cited on behalf of the appellant i.e. Ashok Kumar Pal v. State of Bihar 2002 (4) PLJR 787 . It is further found that the defence never raised any such issue by making any suggestions to the witnesses except a bald suggestion that the seizure was not in accordance with law. Thus, the aforesaid submission on the basis of Section 55 of the Act is bereft of factual foundation and of no help of the appellant. 10. Learned counsel for the appellant also placed reliance upon judgment of the Supreme Court in the case of Bahadur Singh v. State of Madhya Pradesh., AIR 2002 SC 289 : (2002 Cri LJ 579 (SC)) and in the case of Md. Ali Naved v. State of Madhya Pradesh, 2001 (1) PLJR (SC) 85. In the first case noticed above the accused was acquitted by the Apex Court by holding that he could not be convicted on the sole testimony of police witnesses when the recovery itself was doubtful. In that case there was serious dispute as to whether any recovery of contraband had been made or not. The facts of that case were entirely different. In the present case there is no serious challenge to recovery of the contraband and there is no serious discrepancies in evidence in respect of recovery and seizure which is supported by independent witness, PW-8. In the case of Md. Ali Naved v. State of Madhya Pradesh (supra) allegedly recovery of contraband was made from a tin box found in the locked dickey of a car driven by another accused and the prosecution, as was found by the Apex Court, had led no evidence and had not even made any suggestion through its witnesses that the other occupant of the car, the appellant before the Apex Court was in joint possession of the seized article along with the driver who was co-accused. The seizure memo was only against co-accused of that case whereas in the present case the seizure memo was served upon this appellant also and he also signed on the same. In the present case, the prosecution has also led evidence by bringing on record the self statement of this appellant wherein he has admitted his involvement in carrying the contraband Ganja. In the present case, the prosecution has also led evidence by bringing on record the self statement of this appellant wherein he has admitted his involvement in carrying the contraband Ganja. Hence the aforesaid judgment does not help the appellant. 11. In the facts and circumstances of the case and considering the evidence on record brought by the prosecution, it stands established that the Custom Officials had seized the jeep in question on the date and time alleged and from the said jeep a cavity was disengaged at Muzaffarpur Division office of Custom Department leading to seizure of 108 kilograms of contraband Ganja. Seizure list was prepared in presence of independent witnesses one of whom has been examined as PW-8 and he has supported the seizure. The seizure list, Ext-1 also contains signature of the appellant which he has admitted in his statement under Section 313 Cr.P.C. The appellants self statement before the Custom Officials incriminating himself in the offence has also been proved and brought on record as an exhibit. The appellant, no-doubt, took a defence that he was an innocent passenger on the jeep but the jeep in question was a private vehicle and no evidence was brought on record on behalf of the appellant in support of his defence. On the contrary his self statement is incriminating. 12. In the aforesaid facts and circumstances, we find no illegality or error in the judgment under appeal so as to warrant interference with the conviction of the appellant under Section 20(b) (ii) (c) of Narcotic Drugs and Psychotropic Substances Act, 1985. The conviction is confirmed. On behalf of the appellant it has been submitted that the appellant has been found by the trial court to be aged about 65 years of age on 15.5.2009 and there is no material to show that he was earlier involved with any such offence. On this basis, it has been pleaded that the sentence of 14 years awarded to the appellant is excessive and may be reduced to the minimum permissible sentence of 10 years RI. Considering the submissions of the parties on the issue of sentence, we find some merits in the submission advanced on behalf of the appellant. Accordingly, the sentence of 14 years RI awarded to the appellant is modified and reduced to 10 years RI and fine of Rs.2 lacs. Considering the submissions of the parties on the issue of sentence, we find some merits in the submission advanced on behalf of the appellant. Accordingly, the sentence of 14 years RI awarded to the appellant is modified and reduced to 10 years RI and fine of Rs.2 lacs. In case of default in depositing the fine as directed by the trial court the appellant will be required to undergo further rigorous imprisonment for two years. With the aforesaid modification in the sentence, the appeal is dismissed.