Anselem Lyke Nwoso vs Directorate Of Revenue ...
2016 Latest Caselaw 2203 Del

#34
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Date of decision: 18.03.2016

+      CRL.A. 284/2016, Crl. M. (BAIL) 613/2016 and Crl. MA
       4803/2016

       ANSELEM LYKE NWOSO                                 ..... Appellant
                   Through             Mr. Atul Guleria and Mr. Rahul
                                       Tyagi, Advocates
                          versus

       DIRECTORATE OF REVENUE INTELLIGENCE ..... Respondent

Through Ms. Pooja Bhaskar for Mr. Satish Aggarwala, Advocate CORAM:

HON'BLE MR JUSTICE SIDDHARTH MRIDUL

SIDDHARTH MRIDUL, J (ORAL)

Crl. MA No. 4803/2016 (for condonation of delay in filing the appeal)

1. Issue notice.

2. Ms. Pooja Bhaskar, learned counsel accepts notice on behalf of the

respondent.

3. Since the appellant is in judicial custody, learned counsel for the

respondent fairly does not oppose the application for delay in filing the

present appeal.

4. The application is allowed. The delay in filing the appeal is condoned.

5. The application is disposed of accordingly.

CRL.A. 284/2016

1. Notice.

2. Ms. Pooja Bhaskar, learned counsel accepts notice on behalf of the

respondent.

3. Admit.

4. List the appeal in due course as per its own turn.

5. Trial Court Record be requisitioned so as to be available on or before

the next date of hearing.

CRL.M.(BAIL) 613/2016

1. The present is an application under Section 389 of the Code of

Criminal Procedure, 1973 (Cr.P.C.) seeking interim suspension of sentence

and grant of bail to the applicant/appellant during the pendency of the

appeal.

2. The applicant/appellant is a foreign national, who has been found

guilty of possessing 11 kg. of heroin, which admittedly is a commercial

quantity. The Trial Court has come to a conclusion that the prosecution has

proved its case against the accused for the offence under Section 21(c) of

NDPS Act, 1985, beyond reasonable doubt, by way of a judgment and order

of conviction and order on sentence dated 19th October, 2015 and 3rd

November, 2015 respectively; and sentenced him to ten years of rigorous

imprisonment and further sentenced him to pay a fine of Rs. 1 lakh, in

default thereof, to undergo simple imprisonment for six months.

3. Learned counsel appearing on behalf of applicant/appellant would

urge that the Investigating Officer in the subject FIR did not lift the sample

of the contraband at the time of the detention of the appellant, and the sample

was lifted later at the DRI office. In this regard learned counsel would

further urge that the impugned decision of the trial Court is contrary to the

decision of the Hon'ble Supreme Court in Kuldeep Singh vs. State of

Punjab reported as 2011 Criminal Law Journal 2672 wherein the Supreme

Court opined that the non-collection of samples at the initial stage of seizure

vitiates trial.

4. In the present case, however, it is noticed that there is consistent and

reliable evidence of the witnesses with regard to the recovery of the

contraband from the possession of the accused, which has been duly

established as heroin after chemical analysis. It is further observed that there

was no delay whatsoever in the collection of the sample of the contraband

from the appellant, and since it was becoming dark at the place of

interception, the packets that were recovered from the applicant/appellant

were taken to the DRI office for further analysis.

5. The mandate of Section 37 of the NDPS Act, 1985, inasmuch as, it

relates to the satisfaction of the Court qua 'reasonable grounds' for believing

that the applicant is not guilty of such offence and that he is unlikely to

commit any offence while on bail, cannot be lost sight of either. [Ref:

Union of India vs. Rattan Mallik @ Habul reported as (2009) 2 SCC 624].

6. The Hon'ble Supreme Court in Union of India vs. Kuldeep Singh

reported as (2004) 2 SCC 590, in paragraph 17 of the report, held as

follows:-

"17. An offence relating to narcotic drugs or psychotropic substances is more heinous than a culpable homicide because the latter affects only an individual while the former affects and leaves its deleterious impact on the society, besides shattering the economy of the nation as well. That the legislature intended to make the offences under the Act so serious to be dealt with sternly and with an iron hand is made clear by providing for enhanced penalties, including even death sentence, in certain class of cases, when convicted for the second time."

7. This Court, in a decision rendered on 3rd August, 2015 in Criminal

Appeal No. 670/2015 titled as Annastancia Bhule Ndlovu vs. Narcotics

Control Bureau, in paragraph 7 of the report, held as follows:-

"7. It is observed that there is a growing trend in developing countries where numerous impressionable youngsters as well as minors are falling fray to drug abuse. Therefore, this court would be failing in its duty, if offenders such as the appellant, are shown any leniency in the matter of sentence."

8. In terms of the foregoing and in view of the circumstance that

applicant/appellant has been sentenced under Section 21(c) of NDPS Act,

1985 as well as keeping in view the mandate of Section 37 of the NDPS Act,

1985, I do not find this is a fit case for grant of suspension of sentence during

the pendency of the appeal.

9. The present application is hereby dismissed.

SIDDHARTH MRIDUL, J MARCH 18, 2016 SD