Prem Narayan vs Union Of India Thru. D.R.I.
2022 Latest Caselaw 5221 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

1.	Heard Shri Anil Kumar Sharma, learned counsel for the appellant and Shri Digvijay Nath Dubey, learned counsel for the respondent.

2. The present criminal appeal has been filed by the appellant against the judgment and order dated 01.04.2013 passed by learned Additional Sessions Judge, Court No.8, Lucknow in Criminal Case No.380 of 2012, under Section 8 (C)/20 (B) (II) (C)/25 Narcotic Drugs & Psychotropic Substance Act, Police Station D.R.I. Gomti Nagar, District Lucknow.

3. As per the prosecution case, on 28.05.2012 one information was received that truck No.HR 38 L2285 is going to Gorakhpur-Faizabad-Lucknow-Itawah from Raxaul (Bihar) containing Cannabis of commercial quantity. A team was constituted of Ravindra Kumar Tiwari (Senior Revenue Officer), Karunesh Srivastava (Intelligence Officer), Arvind Kumar Srivastava (Intelligence Officer) and Ajeet Kumar (Constable) and instructed that the aforesaid truck with contraband and persons in the vehicle are to be caught at Chinhat Tiraha, Lucknow and request was made to two independent persons, namely, Birendra Kumar Singh and Vishal Kashyap for witnessing the incident, they accepted, and thereafter, they join the team. On 29.05.2012 at about 4:00 A.M. in the light of torch, it was found that vehicle in question was coming and given signal for stopping the same and person, who was driving the vehicle, informed that he is Prem Narayan s/o Ram Dulare, r/o Gram Gautampura, Post Ujiyani, Tehsil Bharthana, District Itawah, U.P., then all the officials and witnesses introduced themselves and asked about hidden Cannabis, but he refused. In last, he accepted that the contraband is kept in special cavity, and thereafter, after informing the necessary information to him, a notice was served and search was conducted in accordance with the Provision of Section 50 of N.D.P.S. Act and vehicle was brought along with driver as well as passengers to Office of D.R.I. at Lucknow, where the cavity was opened, then Cannabis was found in 354 rectangular pieces and total 369 packets of 380 k.g. and after reducing the packing material, the gross weight of the contraband was found 372 k.g. and four samples were prepared, each was 25-25 gram put in polythene, and thereafter, sealed in different envelope and marked as CH 1/4, CH 2/4, CH 3/4 and CH 4/4 and also taken signatures of the accused persons, officials as well as independent witnesses.

4. Later on, all the recovered contraband was also put in eight jute bags and after sealing, it was put in the appropriate custody. The valuation of the recovered contraband was Rs.1,11,60,000/- and aforesaid vehicle was Rs.5,40,000/-. Statement of appellant was recorded, in which, he confessed the offence, and thereafter, he was produced before the trial court on 30.05.2012. Recovery memo was prepared by the Investigating Officer, inventory was also prepared and confiscated contraband as well as truck in question was also deposited in the godown and two tests memo were also prepared by Karunesh Srivastava (intelligence officer) and samples were sent to the Central Revenue Control Lab, New Delhi and Opium and Alkaloid, Factory, Ghazipur, U.P. for chemical examination and proceeding was also conducted as per the Section 57 of N.D.P.S. Act.

5. Assistant Regional Transport Officer, Kanpur, vide its letter dated 22.06.2012 has stated that owner of truck in question is Sughar Singh s/o Sravan Singh r/o 82 A, Sanjay Gandhi Nagar, Nobasta, Kanpur and also informed that D.L.No.57410/E TW/04 is issued on 29.10.2002 to one Ashutosh Dubey s/o Arvind Dubey, r/o Kavikheda, Post Kavi Buzurg for motorcycle and it is valid from 29.10.2002 to 28.10.2022. Summon was issued to one Pyare s/o Shamshudeen, r/o Chisti Nagar, Bhognipur, Ramabainagar for recording his statement, under Section 67 of N.D.P.S. Act and his statement was recorded on 15.06.2012 and he accepted that truck in question was purchased by him, which was sold to Sughar Singh in the year 2011, and thereafter, Officers proceeded to one Papu Yadav, r/o Village/Post Achalda, Near Pani Ki Tanki, Primary Health Centre, Itawah and it was found that in the name of Papu Yadav, four persons are residing in that area and specific address was asked by the enforcement team with the permission of Court, under Section 67 of the N.D.P.S. to Prem Narayan (appellant) recorded in jail, in which, he stated that he does not know the father's name of Papu Yadav, except his address, Gram-Post Achalda, Near Pani Ki Tanki, Primary Health Centre, Itawah.

6. Superintendent Central Excise, Pata Range has informed, vide its letter dated 12.11.2012 that Achalda comes in the District Oraiya not in Itawah, then the Officials contacted to Lekhpal of the Achalda. Lekhpal of the said area informed that in that area no person in the name of Papu Yadav is residing. A letter was also written by the Officials to Chairman Nagar Panchayat, Achalda about Papu Yadav, but no information was received about Papu Yadav.

7. Opium and Alkaloid, Factory, Ghazipur, U.P., vide its report No.3, dated 29.06.2012 found that the recovered confiscated articles is a Cannabis (charas) and similarly, it was also fortified by Central Revenue Lab, New Delhi, vide its report dated 06.07.2012.

8. Statement of Arvind Kumar (Intelligence Officer), DRI was also recorded on 03.10.2012, he stated that in the recovery memo, all the incident is mentioned as recorded and it is duly prepared and signed by him and also informed that notice under Section 50 of N.D.P.S. Act was also given to the appellant. Statement of Karunesh Srivastava (Intelligence Officer) DRI was also recorded on 19.10.2012, he also stated that incident is mentioned in the recovery memo, which was proved and it was duly signed by him and statement of appellant- Prem Narayan was also recorded under Section 67 of N.D.P.S. Act before him and he confessed that he has transported the cannabis (charas) in question and he was produced before the trial court on 30.05.2012. Samples of the recovered articles were also sent and recovered material and vehicle were also deposited in the godown in accordance with law and Section 57 of N.D.P.S. Act and adequate information was also given to Senior Intelligence Officers on 30.05.2012. As the appellant violated the Provision of Section 8/20 (b) (ii) (c)/25 of NDPS Act. Papu Yadav and Sughar Singh were not found, but complaint was filed against the appellant (Prem Nrayan), Papu Yadav and Sughar Singh on the basis of material collected.

9. Appellant denied the charges and claimed trial. After framing of the charges, prosecution proceeded and on behalf of prosecution, four witnesses, namely, Karunesh Srivastava (Intelligence Officer) PW-1, Arvind Kumar Srivastava (Intelligence Officer) PW-2, Anil Kumar Pandey (Intelligence Officer) PW-3 and Anand Naraiyan (Superintendent, Custom and Excise Godown, Lucknow) PW-4. Prosecution also relied on thirty documentary evidences, which was duly proved by the aforesaid witnesses.

10. After completion of the prosecution evidences, statement under Section 313 Cr.P.C. was recorded and appellant denied the prosecution case and he also denied for production of any defence witnesses. Thereafter, conviction order was passed by trial court for the offence under Section 20 (b) (ii) (c)/25 of N.D.P.S. Act and sentencing for a period of 10 years Rigorous Imprisonment and one lakh fine. In case, he failed to deposit the fine, he will also serve one year of sentence.

11. Learned counsel for the appellant has submitted that he does not challenge the conviction as the appellant is in jail since 30.05.2012 and almost he completed ten years as he is very poor person and unable to deposit the fine. He also relied on the decision of Hon'ble Supreme Court in the case of Shantilal vs. State of M.P. reported in (2007) 11 SCC 243 and submitted that in default of fine, sentence may be reduced.

12. Shri Digvijay Nath Dubey, learned counsel for the respondent has no objection, in case the conviction is upheld and judgment of the trial court may be modified up to the fact that in case, appellant failed to deposit the fine, then his imprisonment period may be reduced.

13. Considering the arguments of learned counsel for the appellant as well as learned counsel for the respondent No.1, it is found that trial court has rightly appreciated the evidence as the contraband was recovered from the possession of the appellant, but it is not disputed that appellant is a poor carrier of the alleged contraband. Therefore, appeal is dismissed and order passed by the trial court in relation to conviction is upheld. As Hon'ble Supreme Court in the case of Shantilal vs. State of M.P. (supra) has settled that as per the provision of Section 18 of N.D.P.S. Act, minimum fine contemplated shall not be less than one lakh and in default of payment of fine, appellant has to go imprisonment. As Clause (b) of sub-section (1) of Section 30 Cr.P.C. authorises the court to award imprisonment in default of payment of fine up to one-fourth term of imprisonment which the court is competent to inflict as punishment for the offence, but in the present case, appellant is very poor and he is merely a carrier and it was his first offence because of his poverty, he is unable to pay the heavy amount of fine, therefore, he would remain in jail even after the period of substantive sentence is over only because of his inability to pay fine, serious prejudice will be caused not only to him, but also to his family members who are innocent.

14. In the light of law laid down by the Hon'ble Supreme Court in the case of Shantilal vs. State of M.P. (supra), the sentence is modified that in case default of payment of fine Rs.1 lakh, the appellant shall undergo rigorous imprisonment for one month instead of one year. If the appellant has undergone substantive sentence of rigorous imprisonment for ten years as also rigorous imprisonment for one month as modified in default of payment of fine, appellant shall be set at liberty forthwith unless he is required in any other offence.

15. Accordingly, the appeal is partly allowed.

16. Copy of this judgement be sent to District & Sessions Judge, Lucknow and he shall ensure the communication of this judgement to appellant and Jail Authority, forthwith.

(Rajeev Singh,J.)