Tassavur vs Dri
2014 Latest Caselaw 1407 Del

$-8 & 9
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         DECIDED ON : 18th MARCH, 2014

+                    CRL.A. 599/2012
       TASSAVUR                                              ..... Appellant
                             Through :     Mr.Shahid Azad, Advocate.
                             versus
       DRI                                                  ..... Respondent

                             Through :     Mr.Vikas Gautam, Advocate.
AND
+             CRL.A. 767/2012 & CRL.M.A.No. 1429/2013
       MUKAIL ADEBAYO                                        ..... Appellant
                             Through :     Ms.Anita Abraham, Advocate.
                             versus
       THE STATE (NCT OF DELHI)                 ..... Respondent
                     Through : Mr.Vikas Gautam, Advocate.
        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.Garg, J. (Open Court)

1. Tassavur (A-1) and Mukail Adebayo (A-2) challenge the

legality and correctness of a judgment dated 03.03.2012 of learned

Additional Sessions Judge / Special Judge - NDPS in Sessions Case No.

30A/06 by which they were held guilty of committing offence punishable

under Section 21(c) of NDPS Act. By an order on sentence dated

06.03.2012, they were awarded RI for ten years with fine ` 1 lac, each.

2. Allegations against the appellants were that on 20.11.2005 at

about 11.00 A.M., an intelligence was received by PW-1 (Sh.K.S.Ratra),

Intelligence Officer that one person (A-1) would bring around 3 Kg. of

heroin to deliver it to Becky Samuel (since expired) and A-2 at R-22, 2nd

floor, Khirki Extension, Malviya Nagar, New Delhi in between 04.00 to

07.00 P.M. The information was reduced into writing and was placed

before superior officer who directed PW-1 to mount a surveillance around

the said premises. Further case of the respondent / DRI is that around

05.00 P.M., the said premises were raided in the company of two

independent witnesses. A-1, A-2 and Becky Samuel (since expired) were

found present there. A-1 attempted to flee the spot and caught hold. It is

further alleged that one leather bag of "Da Millano" brand and some

Indian and Foreign currency were recovered from the said premises. On

examination of the bag, it was found to contain two golden fabric pouches

and four pairs of ladies sandals. These contained white powder / granules

of various weights. The total recovery effected was 2.924 Kg. of heroin.

Panchnama (Ex.PW-2/C) was drawn at the spot. In response to the

summons dated 20.11.2005 under Section 67 of the NDPS Act, all the

three accused persons tendered their statements (Ex.PW-10/B, Ex.PW-2/F

and Ex.PW-5/B). All the accused persons were arrested. Statements of the

witnesses conversant with the facts were recorded. After completion of

investigation, a complaint was filed in the Court on 17.05.2006. The Trial

Court took cognizance of the offence on 19.05.2006; they were duly

charged and brought to trial. The prosecution / DRI examined 16

witnesses to establish guilt of the accused persons. In their 313 statements,

the appellants denied their complicity in the crime and pleaded false

implication. Mukail Adebayo (A-2) examined himself in defence. It is

relevant to note that Becky Samuel expired during trial and the

proceedings against her were dropped. After considering the rival

contentions of the parties and appreciating the evidence on record, the

Trial Court, by the impugned judgment, held the appellants guilty for the

offence mentioned previously and sentenced them accordingly. It is

significant to note that both the appellants were acquitted of the charge

under Section 29 read with Section 21 (c) of the Act. The prosecution /

DRI did not challenge the said acquittal. Being aggrieved and dissatisfied,

they have preferred the appeals.

3. During hearing of the appeals, appellants‟ counsel on

instructions stated at Bar that they have opted not to challenge the findings

of the Trial Court on conviction. They prayed to modify the sentence

order as the appellants have already undergone substantial period of

substantive sentence awarded to them.

4. Since the appellants present in custody pursuant to the

issuance of production warrants have accepted their conviction under

Section 21 (c) of NDPS voluntarily and have given up challenge to the

conviction in view of the overwhelming evidence coupled with recovery

from their possession, their conviction under Section 21 (c) of NDPS Act

stands affirmed. The appellants were awarded RI for Ten years with fine `

1 lac, each. A-1‟s nominal roll dated 05.07.2012 reveals that he has

suffered six years, seven months and fourteen days incarceration as on

05.07.2012. It further reveals that he is not a previous convict and is not

involved in any other criminal case. His overall jail conduct is

satisfactory. It is informed that he is to maintain his four minor children.

His parents have expired during the pendency of the trial. His wife has left

the matrimonial home due to his involvement in the case. He was also

implicated in some other false case in which he has been acquitted by the

Court.

5. A-2‟s nominal roll dated 01.06.2012 reveals that he has

suffered six years, six months and ten days incarceration as on

01.06.2012. It further reveals that he is also a first offender and is not

involved in any other criminal case. His overall jail conduct is

satisfactory. He is a foreign national. He is aged about 60 years and is to

maintain two wives and six children. It is submitted that the A-2 is

suffering from various ailments.

6. Considering all these facts and circumstances of the case and

in the interest of justice, keeping in mind the peculiar facts of this case,

the order on substantive sentence under Section 21 (c) of NDPS Act is

maintained as it is the minimum sentence i.e. RI for 10 (Ten) years.

7. In the case of „Shahejadkhan Mahebubkhan Pathan vs. State

of Gujarat‟, 2012 (10) SCALE 21, decided on 05.10.2012, the Supreme

Court reduced the sentence from 15 years to 10 years as the appellant

therein had already served nearly 12 years in jail. The order on payment of

fine of ` 1,50,000/- was upheld but default sentence was reduced from RI

for 3 years to RI for 6 months. The appellant therein was found in

possession of 500 grams of brown sugar and was convicted for the offence

punishable under Section 8 (c), 21 and 29 of NDPS Act. The Division

Bench of Gujarat High Court had dismissed the Crl.A.No.11 & 75/2002

vide order dated 08.07.2002. The appellants have expressed their inability

to deposit the fine amount of ` 1 lac due to poverty. The amount of ` 1 lac

imposed by the Trial Court cannot be reduced. However, taking into

consideration Section 30 of Cr.P.C. and the judgment of „Shahejadkhan

Mahebubkhan Pathan vs. State of Gujarat‟ (supra) where the default

sentence was reduced from three years to six months, it is ordered that the

appellants shall pay a fine of ` 1 lac, each and in default of payment of

fine they shall undergo SI for a period of fifteen days.

8. The appeals filed by the appellants are disposed of in the

above terms. A copy of the order be sent to Jail Superintendent, Tihar Jail

for information. Trial Court record along with copy of this order be sent

back to the Trial Court.

CRL.M.A.No. 1429/2013 in CRL.A. 767/2012 The application has been moved by the respondent for destruction

of 2.895 Kg heroin. Since the matter has been decided and learned

counsel for the appellants have no objection, the respondent is permitted

to destroy the seized property i.e. 2.895Kg heroin including the

representatives samples as per rules.

The application stands disposed of.

(S.P.GARG) JUDGE MARCH 18, 2014/tr