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2021 DIGILAW 1682 (RAJ)

Govind v. State of Rajasthan

2021-09-10

PANKAJ BHANDARI

body2021
ORDER 1. The appellants have preferred this appeal aggrieved by the judgment and order dated 18.3.2015 whereby the appellants have been convicted for offence under Section 8/15 and 8/26(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act") and have been sentenced to undergo 10 years rigorous imprisonment pay a fine of Rs.1,00,000/- and in default, to further undergo 1 year additional rigorous imprisonment for the offence under Section 8/15 of the NDPS Act and also sentenced to 1 year simple imprisonment for the offence under Section 26(b) of the NDPS Act and has been acquitted for offence under Section 26(d) of the NDPS Act. 2. Succinctly stated the facts of the case are that on 23.3.2014 at about 5:10 p.m. one vehicle bearing No.MP-13-BA-1099 was stopped by the police. The appellant-Govind was driver of the vehicle and appellant-Izrail @ Israil was cleaner of the vehicle. The vehicle was found to be loaded with five bags filled with poppy straw. On weighment, the total weight of the contraband was found to be 98 kgs. 3. After investigation, the police submitted a charge-sheet under Section 8/15 and 8/26(b) and (d) of the NDPS Act against the appellants. On behalf of the prosecution, 8 witnesses and 30 documents were exhibited. Statements of the appellants were recorded under Section 313 Cr.P.C. After hearing the arguments, the appellants were convicted by the Court below vide judgment and order dated 18.3.2015 for the offence under Section 8/15 and 8/26(b) of the NDPS Act, aggrieved by which, the present appeal has been preferred by the appellants before this Court. 4. It is contended by learned counsel for the appellants that the consignment was being transported under a valid license issued by the District Excise Officer, District Mandsaur (M.P.). Counsel for the appellants has drawn my attention towards Exhibit-P3 in this regard. It is established that the consignment was being transported under a valid license issued by the competent authority. My attention is also drawn towards the statement of PW-2 - Rajaram Kushwah, Assistant District Excise Officer, who has mentioned that licensee was given permit to transport 98 kgs of poppy straw and the consignment was to be transported from Garoth to Soyat Chara (Biaora), District Rajgarh. My attention is also drawn towards the statement of PW-2 - Rajaram Kushwah, Assistant District Excise Officer, who has mentioned that licensee was given permit to transport 98 kgs of poppy straw and the consignment was to be transported from Garoth to Soyat Chara (Biaora), District Rajgarh. He has stated that the route was given and if the route is changed, it amounts to violation of the terms and conditions of the permit. In the cross-examination, this witness admitted that it was nowhere mentioned in the permit that the vehicle would not be taken from the State of Rajasthan and no specific route was mentioned in the permit. It is argued that the case could not fall within the ambit of Section 8/15 of the NDPS Act and at most, it would fall under Clause (d) of Section 26 of the NDPS Act wherein the maximum sentence provided for is punishment with imprisonment for a term, which may extend to three years or with fine or both. 5. It is contended that appellant No.1 is driver and appellant No.2 is a cleaner. PW-7 - Shyam Lal is the person, who had taken the permit. PW-5 - Praveen Kumar is the person to whom the consignment was to be delivered. He has also stated that he did not tell the driver about the route by which the consignment was to be brought and also did not tell the driver not to take the vehicle through Rajasthan. Both PW-5 - Praveen Kumar and PW-7 - Shyam Lal were declared hostile. 6. Learned Public Prosecutor has opposed the appeal. It is contended that the Court below has not committed any error in convicting the appellants. It is also contended that the contraband, which was being transported, was commercial quantity. There was no valid permit in the vehicle and the permit was given for transportation of the contraband within the State of M.P. The vehicle barged into the State of Rajasthan without having any valid authority. My attention has been drawn to the statement of PW-8 - Satveer Meena, Seizure Officer, who has stated that the appellants did not produce the valid permit for transportation of the contraband at the time when the vehicle was seized and seizure memo was made. 7. I have considered the submissions. 8. My attention has been drawn to the statement of PW-8 - Satveer Meena, Seizure Officer, who has stated that the appellants did not produce the valid permit for transportation of the contraband at the time when the vehicle was seized and seizure memo was made. 7. I have considered the submissions. 8. From the evidence of the witnesses produced on behalf of the prosecution more particularly PW-2 -Rajaram Kushwah, who happens to be Assistant District Excise Officer and who has issued the permit. As per this witness, he had issued the permit for transportation of 98 kgs of poppy straw. In his examination-in-chief, he has stated that the route was given in the permit, however, in the cross-examination, he has admitted that no mention was made in the permit that vehicle would not be taken through Rajasthan and that no route was mentioned in the permit. From the statement of PW-3- Khurshid Bee, the owner of the vehicle, it is evident that the route for transporting the consignment was not given to the driver. Similar are the statements of PW-5- Praveen Kumar and PW-7- Shyam Lal. PW-6 - Prahlad Singh, who was the SHO, Police Station, Mishroli, has stated that during the investigation, he obtained the route permit, license of persons, who has booked the consignment and to whom the consignment was to be delivered. It has come in the evidence that the route which was taken by the appellants was a shorter route. In the statements recorded under Section 313 Cr.P.C, the appellants have stated that they are innocent and that no route was given to them, rather they were told to take the consignment through the shortest route. 9. I am of the considered view that from the evidence, it is crystal clear that there was a valid permit issued for transportation of the consignment. From the evidence, it is also clear that no specific route was given to the appellant- driver for taking the consignment. His defence that he took the shortest route as he was told to do so by the owner of the vehicle, cannot be said to be a made up story. From the statement of the District Excise Officer, who has issued the permit, it is revealed that he had not given a specific route or a direction in the permit that the goods should not be taken through Rajasthan. From the statement of the District Excise Officer, who has issued the permit, it is revealed that he had not given a specific route or a direction in the permit that the goods should not be taken through Rajasthan. The conviction of the appellants therefore under Section 8/15 of the NDPS Act was clearly contrary to the evidence, which was available on record. The Court below has erred in convicting the appellants under Section 8/15 of the NDPS Act. 10. As far as the conviction under Section 8/26(b) of the NDPS Act is concerned, PW-8 -Seizure Officer has stated before the Court below that when the vehicle was stopped and permit for transportation of the consignment was asked from the appellants, they did not produce any document. There is no reason to disbelieve the testimony of PW-8 - Satveer Singh. The conviction of the appellants under Section 26(b) of the NDPS Act therefore cannot be said to be bad in law. 11. Consequently, the appeal is partly allowed and the conviction and sentence for the offence under Section 8/15 of the NDPS Act is set aside, however, the conviction and sentence for the offence under Section 8/26(b) of the NDPS Act is upheld. 12. The appellants have already remained in custody for a period of 7 years and the sentence imposed by the Court below under Section 8/26(b) of the NDPS Act is one year, the appellants are directed to be set at liberty forthwith, if they are not wanted in any other case.