HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 22 Case :- CRIMINAL APPEAL No. - 533 of 2004 Petitioner :- Mohd.Shabbir Respondent :- Uion Of India Petitioner Counsel :- Anil Kumar Pandey,Rajesh Sharma Respondent Counsel :- Mr.I.B.Singh connected with Case :- CRIMINAL APPEAL No. - 409 of 2004 Petitioner :- Abdul Gafoor Respondent :- Union Of India Petitioner Counsel :- Anil Kumar Pandey Respondent Counsel :- I.B. Singh ------------ Hon'ble Satyendra Singh Chauhan,J.
Both the Criminal appeals arise out of the judgment and order dated. 19.12.2003 hence they are being decided by a common judgment.
Heard learned counsel for the appellants and the learned counsel for the Narcotics Bureau.
These appeals have been filed against the judgment and conviction order dated 19.12.2003 passed in Criminal Case No.250 of 1999 (Union of India Vs. Mohd. Shabbir and Abdul Gafoor), convicting the accused-appellants under Sections 8/21 of N.D.P.S.Act for a period of 14 years R.I. and a fine of Rs. 1.5 Lakhs on each appellants and in case of default of payment of fine further imprisonment for a period of three years.
The prosecution case in short is that on 04.07.199 S.T. Mr. Waqar Ahmed received secret information that two or three persons from Calcutta would come to Kanpur on 118 NE Car No. WB-02-A-6628 and the colour of the Car was green and they would smuggle 10 to 15 Kgs. Heroine by concealing the same in secret Chamber of the Car and would go to Calcutta. Sri Waqar Ahmad recorded the secret information in D.R.I.(I) form and consulted the Deputy Narcotics Commissioner, who formed two preventive parties to intercept the smugglers. One party was headed by Mr. S.P.S. Yadav, Superintendent and another party was headed by Mr. R.C. Srivastava, Superintendent. Both the parties left Lucknow on 05.07.1999 for Kanpur-Allahabad-Varanasi highway and kept vigil on the said highway. On 07.07.1999 the informer again informed Mr. Waqar Ahmad that in continuation of his earlier information both the Calcutta persons would proceed to Calcutta today at any time with the heroin concealed in the said N.E. Car. Waqar Ahmad reduced the secret information in writing and presented the same before Assistant Narcotics Commissioner who directed him to join the preventive parties already keeping vigil and were also in
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contact with the office regularly. Mr. Waqar Ahmad at 9.30 a.m. called two public witnesses namely Surendra Kumar and Ajai Kumar and apprised them about the secret information as well as for the arrest of smugglers and after their consent they took both of them with them and reached at 3.00 p.m. at Jhusi on Kanpur-Allahabad-Varanasi Marg where Mr. S. P. S. Yadav, Superintendent was already present with his party. At 4.00 p.m. on 7.7.1999 both the parties saw that a green N.E.Car is coming towards Allahabad side and the said Car stopped about 50 yards from the parties who were there to intercept the said Car. When the party personnel proceeded towards the said N. E.Car the Driver of the said Car took a turn and raced on the Jaunpur road. The said car was chased by both the parties and after chasing the Car for about two and half hours, the N.E. Car was seen before Mohanlalganj and after some chase the N.E. Car was overtaken and intercepted near S.G.P.G.I. On the direction of Mr.S.P.S. Yadav, Mr. D.P. Bhatnagar, Inspector asked the names of the persons in the said N.E.Car. The Driver of the aid Car told his name as Abdul Gafoor, resident of Howrah-Calcutta and the person who was sitting on the back seat disclosed his name as Mohd. Shabir of Calcutta. Mr. D.P. Bhatnagar also introduced himself as well as other members of the parties and disclosed to both persons that they are Narcotics authorities and they have secret information that both of you are smuggling heroin. They were also informed about the legal provision for getting themselves searched before the the gazetted officer or Magistrate and for search of your Car which was refused by them and thereafter they were taken into custody in presence of both the witnesses after compliance of Section 50 of the N.D.P.S. Act and they were asked to sign the memo prepared by them. Thereafter search of the Car was made but nothing incriminating was recovered but from the Dicky of the Car there was a particular place which was welded and was painted with yellow colour. There was no proper light as well as arrangement to open the welded portion inside the Dicky of the Car and as it was about 7.30 or 8.00 PM and there was no source of light, therefore, the authorities took the Car as well as the accused Shabbir and Gafoor along with the public witnesses to their office at Mahanagar and welded portion was cut and opened and from the secret Chamber 11 small packets were recovered. In each of the packets brown powder was packed in polythene. On interrogation appellants disclosed that the brown powder recovered is heroin and the total recovery of 10.700 Kg. of heroin was found. Both the accused confessed their crime and said that the recovered heroin is to be delivered to one Seraj Khan who is not only the owner of N.E. Car No. WB-02-A-6628 but also real brother-in-law of accused Shabbir who was not found and is still absconding. On these allegations a complaint was filed under Section 8/21 of the Narcotics Drugs and Psychotropic Substances Act ( in short 'the Act') and the evidence was led by the parties. After the evidence was led the trial court considered the evidence and proceeded to convict the accused-appellants under Section 8/21 of the Act for a period of 14 years R.I. and a fine of Rs. 1.5 Lakhs and in default of payment of fine further imprisonment for a period of three years.
Submission of learned counsel for the appellants is that the appellants have already undergone sentence of 11 years and 08 months of sentence and, therefore, these appeals may be decided in respect of the appellants as the period already having undergone by them as the minimum sentence provided under Section 8/21(C) of the Act is 10 years and the fine may be mitigated
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in lieu of the sentence which has been undergone by the appellants. Learned counsel has placed reliance upon the judgment reported in 2008 (6) ACC34 Shanti Lal Vs. State of M.P. (SC) wherein similar question arose and 7 Kgs. 60 Gms. Narcotic Drug was found in a bag being carried by the accused. The trial court convicted the accused and sentence was upheld by the High Court. The apex Court while considering the matter disposed of the appeal with the period of sentence having already under gone by the accused in the said case is ten years and further proceeded to consider the question as to whether the fine imposed can be mitigated in lieu of sentence undergone. The apex Court held that there is no express power in a Court to order imprisonment in default of payment of fine but according to the settled law it was held that such an order can be passed by a competent Court of law having power to impose fine as one of the punishments. In this regard the apex Court relied upon the case of Queen-Empress v. Yakoob Sahib, ILR(1899) 22 Mad.238 .
Learned counsel submits that the case of the appellants is squarely covered by the aforesaid decision, therefore, the sentence of fine which has been imposed upon the appellants may be mitigated in terms of the excessive sentence undergone by the appellants of one year and 08 months.
Learned counsel for the Narcotics Bureau could not pointout any provision to the contrary nor could dispute the above legal position in regard to the prayer for undergoing sentence.
These appeals are, therefore, disposed of in terms of the sentence having undergone by the appellants in respect of 10 years of minimum sentence as held in Shantilal (Supra) case. The fine of Rs.1.5 lakhs shall also stand set aside as against the sentence of one year and 08 months having undergone than the minimum sentence.
Both the appeals are accordingly disposed of.
Order Date :- 9.3.2011 BLY