Peter Clement Arize vs The State Of Maharashtra
2021 Latest Caselaw 229 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                   CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL APPEAL NO. 130 OF 2017
                            ALONG WITH
                CRIMINAL APPLICATION NO. 1657 OF 2017

Peter Clement Arize                        ]
Age 32 Yrs, Occ.Businessman,               ]
R/o. Shri Krupa Bldg., Flat No.404,        ]
Pachnand Nagar, Taloja Road,               ]
Navi Mumbai.                               ]
(At present Arthur Road Jail.)             ]       ... Appellant

      V/s.

The State of Maharashtra                   ]
ANC Ghatkopar Unit,                        ]
(Wide CR No.229/2014)                      ]       ... Respondent

                            ALONG WITH
                   CRIMINAL APPEAL NO. 299 OF 2017
                            ALONG WITH
                CRIMINAL APPLICATION NO. 1465 OF 2017

Lucky Agbaraizu                            ]
Nigerian National, Age 33 Yrs.,            ]
R/o. Shri Krupa Bldg., Flat No.404,        ]
Plot No.49, Sector-02,                     ]
Pachnand Nagar, Taloja Phase No.01,        ]
Taloja Road, Navi Mumbai.                  ]
(At present undergoing sentence at         ]
Kolhapur Central Prison, Kolhapur.)        ]       ... Appellant

      V/s.

The State of Maharashtra                   ]
Anti Narcotic Cell,                        ]
CR No.229/2014 dated 01/06/2014            ]       ... Respondent

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Mr.Ayaz Khan a/w.Mr.Dilip Mishra for Appellant(s).
Mr.Amit Palkar, A.P.P. for Respondent-State.


                                            CORAM : A.S. GADKARI, J.

                   RESERVED ON              : 25th November 2020.

                   PRONOUNCED ON            : 6th January 2021.



JUDGMENT :

Being dissatisfied with the Judgment and Order dated 30 th

January 2017 passed in NDPS Special Case No.144 of 2014 by the NDPS

Special Judge, City Civil & Sessions Court, Gr. Mumbai, appellants have

preferred the present appeals. By the impugned Judgment and Order dated

30th January 2017, the Trial Court has convicted appellants for the offence

under Section 9-A read with 25-A of The Narcotic Drugs and Psychotropic

Substances Act, 1985 (for short, "the N.D.P.S. Act") and are sentenced to

suffer rigorous imprisonment for 8 years each and to pay a fine of

Rs.1,00,000/- each, in default of payment of fine to further suffer simple

imprisonment for 6 months by each of the appellants.

2. Heard Mr.Ayaz Khan, learned counsel for the Appellants and

Mr.Amit Palkar, learned A.P.P. for the Respondent-State. Perused entire record.

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3. Appellant, Peter Clement Arize in Criminal Appeal No. 130 of

2017 is original Accused No.1 and Appellant, Lucky Agbaraizu in Criminal

Appeal No. 299 of 2017 is original Accused No.2 in NDPS Special Case

No.144 of 2014.

The record reveals that, Nitin P. Patil (PW-6), Assistant Police

Inspector (API) was investigating a Crime bearing C.R. No. 41 of 2014 under

Sections 420, 465, 466, 467, 471, 34 read with 120-B of the Indian Penal

Code. He had already arrested two accused persons in the said crime. One

accused by name Godwin, who was a Nigerian national was absconding. On

31st May 2014 he received information that, the said accused Godwin would

come at Kopar Khairane, Navi Mumbai. He communicated the said

information to Police Inspector Shri Gopale. P.I. Shri Gopale asked him to take

permission of superior officers to go to the said spot along with staff. After

taking necessary permission API Nitin Patil (PW-6) went to the said spot along

with his staff. At about 3:00 pm he received information that accused Godwin

would come at Vidyanagari, Kalina, Santacruz East. He therefore along with

his staff went at the said place at about 5:10 pm. In the meantime P.I. Gopale

sent A.P.I. Fulpagare and other staff along with necessary articles of raid for

preparing panchanama. The said additional staff also reached at the said spot

at about 5:10 pm. They met at the north gate of the University on Hans

Bhugra Road, Kalina. All the staff was divided into two teams. At about 5:30

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pm one auto-rickshaw came at the bus-stop of route No.318. Two Nigerian

persons got down from it. They were waiting for somebody and chit-chatting.

One of the two persons was having black coloured sack bag on his shoulder,

while the other person was holding sack bag in his hand. API Nitin Patil

doubted that one of them was accused Godwin. All the police personnel

encircled the said two persons. A.P.I. Nitin Patil told Police Constable Shri

Sawant to call for two panchas. At about 5.50 pm, two panch witnesses,

namely, Mohd Sajja Abdul Sattar Shaikh (PW-3) and Omprakash Pyarelal

Vaish (PW-4) came at the spot.

API Patil informed the said pancha witnesses that, he is

investigating C.R. No.41 of 2014 and was intending to take search of the said

two persons. He therefore gave introduction to both the Nigerian persons and

told them, the purpose of his arrival. In the presence of said panch witnesses

he enquired with the said two persons. One of the person disclosed his name

as Peter Clement Arize and the other person as Lucky Agbaraizu, both residing

at Taloja Road, Navi Mumbai. API Patil took search of the sack bags which

were in possession of the said two persons and noticed that, both of the said

bags were having powder in the shape of white crystals kept in plastic bags

therein. He got suspicious about the fact that, it may be a narcotic drug and

therefore, he kept the said articles in the bags again and closed its chains. He

enquired with both the said persons about the said substance. They gave

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unsatisfactory answers. API Patil informed the said incident to P.I. Gopale on

phone. P.I. Gopale informed Mr.Patil that, he will communicate the said fact to

his superior officers and directed API Patil to wait at the said spot with

panchas and accused.

At about 7.30 pm a Police Jeep bearing No.MH-01/4232 arrived

at the spot. A police team headed by Police Inspector Vijay Belge (PW-5), then

incharge of Anti Narcotic Cell (A.N.C.), Ghatkopar Unit, along with PSI Baban

Sanap (PW-7)of A.N.C. and other police personnel alighted from it. P.I. Vijay

Belge (PW-5) intruduced himself. P.I. Belge thereafter took-over the further

investigation of the case. Under the directions of P.I. Belge, PSI Sanap (PW-7)

took search of those two panch witnesses, namely, Mohd Sajja Abdul Sattar

Shaikh (PW-3) and Omprakash Pyarelal Vaish (PW-4).

P.I. Belge thereafter directed PSI Sanap to take search of the said

two panch witnesses and vice-versa. No objectionable things were found on

the person of the panch witnesses. P.I. Belge enquired with those two Nigerian

persons about their name and addresses to which they answered accordingly.

P.I. Belge showed his identity card to the appellants and told them that, he

intends to take their search. He thereafter in presence of panch witnesses

orally as well as by issuing letters in writing, bearing Exhibit Nos.33 and 34

respectively, apprised appellants about their right of search to be taken before

the nearest Gazetted Officer or nearest Magistrate as contemplated under

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Section 50 of the NDPS Act. The appellants wrote on the said letters as 'not

required'. As per the instructions of P.I. Belge, API Nitin Patil (PW-6) took

search of appellants and found 2 k.g. and 1.900 k.g. of white colour crystal

like powder in the back sacks of appellants respectively. The appellants told

the Investigating Officer that, the said powder was Ephidrine. Small quantity

of the said powder was tested with the help of Field Testing Kit and it was

transpired that, it was 'Ephidrine'. P.I. Belge thereafter by following due

procedure, drew samples of the said powder, namely, Exhibit A-1 and B-1

respectively. After completion of all the legal formalities, the appellants came

to be arrested by the Investigating Agency.

The samples i.e. ExhibitA-1 and B-1 respectively were thereafter

carried to the Office of Chemical Analyzer, Forensic Science Laboratory

(F.S.L.), Kalina by Rajendra Shirke (PW-1), Police Naik then attached to

A.N.C. Gharkopar Unit on 2 nd June 2014. Miss Ramanpreet Kaur Kuldeep

Singh Oberoi , Assistant Chemical Analyzer, then attached to F.S.L. Kalina,

Mumbai, examined those samples for its analysis. After analysis, she found

that, the samples were 'Pseudoephedrine'. She accordingly issued Chemical

Analysis Report (Exhibit-23). On the basis of the aforestated evidence

available on record, the Trial Court has convicted and sentenced the

appellants as noted in para No.1 here-in-above.

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4. The aforestated facts have been deciphered from the testimonies

of the witnesses of the present case. The possession of contraband, namely,

Ephedrine / Pseudoephedrine by the appellants has been proved by the

prosecution beyond reasonable doubt.

Mr.Ayaz Khan, learned counsel for the appellants fairly conceded

to the aforestated facts and submitted that, he has no serious dispute about

the facts mentioned herein above. He, on instructions, further submitted that,

he is not pressing the present Appeals on merits.

5. Mr.Ayaz Khan further submitted that, the contraband, namely,

Ephedrine / Pseudoephedrine is a controlled substance and therefore

awarding of sentence of 8 years of rigorous imprisonment by the Trial Court

to the appellants is on higher side. He submitted that, except the present

conviction, there are no antecedents at the discredit of the appellants. He

therefore prayed that, the sentence imposed upon the appellants may be

reduced to 5 years of rigorous imprisonment and after its completion, the

appellants may even be deported from India. He therefore prayed that, the

present appeal may accordingly be allowed.

6. This leads me to deal with the quantum of punishment imposed

upon the appellant by the Trial Court. It is the settled position of law that, the

sentence awarded to the accused should be commensurate to the nature of

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offence and the manner in which it was committed. The sentencing courts are

necessarily to consider all relevant facts and circumstances bearing on the

question of sentence, while imposing a sentence commensurate with the

gravity of the offence. The sentence is necessarily to be adequate, just and

proportionate with the gravity and nature of crime. The mitigating and

aggravating circumstances are required to be taken into consideration while

awarding sentence.

7. Serial No.4 of Schedule-A of The Narcotic Drugs and Psychotropic

Substances (Regulation of Controlled Substances) Order, 2013 mentions

'Ephedrine and its salts'. Section 25-A of NDPS Act provides that, 'if any

person contravenes an order made under section 9-A, he shall be punishable

with rigorous imprisonment for a term which may extend to ten years and

shall also be liable to fine which may extend to one lakh rupees'. It is to be

noted here that, however, no minimum sentence is prescribed in the Section

25-A of NDPS Act.

It is held by this Court in a catena of decisions that, the controlled

substance is neither a narcotic drug nor a psychotropic substance and

therefore, no commercial quantity or otherwise is provided for the controlled

substance. It is also held that, as far as controlled substance is concerned,

there is no categorization of small or commercial quantity. It is further held in

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the case of Rafael Palafox Garcia Vs. The Union of India & Another (Criminal

Application No. 2015 of 2008) dated 25th September 2008, that a controlled

substance is not necessary used only to make narcotic or psychotropic

substance but it is a versatile substance which can be used in manufacturing

of various things including innocuous medicines by the pharmaceutical

industry.

8. In the present case, as per the submissions made by the learned

counsel for the appellants, after conviction the appellant Peter Clemant Arize

has undergone approximately 4 years and 3 months of actual imprisonment;

whereas the appellant Lucky Agbaraizu has undergone approximately 6 years

and 4 months of actual imprisonment.

9. In this view of the matter and considering the attending

circumstances, in the opinion of this Court, the sentence of 8 years of rigorous

imprisonment in the presence case needs to be scaled down to rigorous

imprisonment for 6 years by maintaining the fine and in default sentence

imposed thereon by the Trial Court. In the result, the Appeals are partly

allowed.

Hence, the following Order :-

(i) Both the Appeals are partly allowed.

(ii) The conviction and sentence of appellants/accused passed by the Trial Court for the offence punishable under Section

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9-A read with Section 25-A of the N.D.P.S. Act is upheld.

The imposition of fine of Rs.1,00,000/- each and default sentence of simple imprisonment of 6 months is also maintained.

(iii) However, the substantive sentence of rigorous imprisonment of 8 years each awarded by the Trial Court to the appellants is reduced to 6 years of rigorous imprisonment.

(iv) The Respondent-Anti Narcotic Cell of Mumbai Police is hereby directed that, the appellants shall be deported to Nigeria within 10 days after completion of their sentence and release from jail by completing all the necessary formalities in that behalf.

The Investigating Agency is also directed to communicate the fact of deportation of the appellants to the Indian Embassy at Nigeria and Embassy of Nigeria in India.

10. In view of disposal of Appeals, nothing survives in the Criminal

Application Nos.1657 of 2017 and 1465 of 2017 pending therein and are

accordingly disposed off.

[A.S. GADKARI, J.]

Digitally signed by Omkar S.

Omkar S.     Kumbhakarn
Kumbhakarn   Date:
             2021.01.06
             14:19:26 +0530