Md. Sarfaraj Ansari vs The Union Of India
2023 Latest Caselaw 2315 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                CRIMINAL APPEAL (DB) No.1109 of 2016
  Arising Out of PS. Case No.-27 Year-2010 Thana- GOVERNMENT OFFICIAL COMP.
                                District- East Champaran
======================================================

Md. Sarfaraj Ansari Son of Abtab Ansari, Permanent Resident of Village and P.O.- Nagra Bazar, District- Saran at Chapra Bihar, at present Residing at House No. 16, Maulana Azad Road, Koila Sadak, P.S.- Budge- Bude, District- 24, Pargana West Bengal.

... ... Appellant/s Versus The Union of India

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Vijay Shanker Srivastava, Adv. For the Respondent/s : Mr Manoj Kumar Singh, (CGC) ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE HARISH KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 12-05-2023

Heard Mr. Vijay Shanker Srivastava, for

the appellant and Mr. Manoj Kumar Singh, for the

Union of India.

2. The appellant has been convicted under

Sections 20(b)(ii)(C) and Section 23(C) of the

Narcotic Drug & Psychotropic Substances Act, 1985

(for short the "NDPS Act") vide judgment dated

24.08.2016 in N.D.P.S. Case No. 03 of 2010, by the

learned Additional Sessions Judge-III-cum-Special

Judge, East Champaran, Motihari and vide order Patna High Court CR. APP (DB) No.1109 of 2016 dt.12-05-2023

dated 29.08.2016, he has been sentenced to

undergo R.I. for 15 years for offences under

Sections 20(b)(ii)(C) as well as 23(C) of the NDPS

Act, to pay a fine of Rs. 1 lac and in default of

payment of fine to further suffer imprisonment for

six months. The sentences have been ordered to

run concurrently.

3. The appellant is the driver of the Tank

Lorry which was intercepted by the raiding team.

59 packets of ganja containing approximately 520

Kgs. were recovered from the secret chamber of

the Tank Lorry. Five persons were made accused in

this case, out of whom, three were put on trial but

only the appellant was convicted and sentenced

whereas other two who are the joint owners of the

vehicle (Tank Lorry) have been acquitted of all the

charges.

4. The Trial Court has examined twelve

witnesses and had perused eighteen exhibits for

coming to the conclusion that the appellant was

guilty of both the offences viz. under Sections

20(b)(ii)(C) as well as 23(C) of the NDPS Act. Patna High Court CR. APP (DB) No.1109 of 2016 dt.12-05-2023

5. The allegation has been made by Rajesh

Kumar Chaudhary, Custom Inspector-cum-Seizing

Officer-cum-Complainant (P.W.2), that during the

course of routine checking, a Tank Lorry bearing

Registration No. W.B. 19A-1157, was intercepted on

05.02.2010 at about 08:00 PM near Border check

post of Land Customs Station, Raxaul. The Tank

Lorry was coming from Birgunj (Nepal) side. When

the vehicle was signalled to stop at the Indian

Border, that was attempted to be evaded and the

driver sped the vehicle but was intercepted with

the help of the raiding team. The appellant had

been driving the vehicle. He tried to flee away, in

course of which, he received injuries but was

promptly nabbed by the raiding team. In his

presence, the Tank Lorry was searched. It was

found that stealthily, in the secret chamber of the

Tank Lorry, 59 packets of ganja were stashed.

6. From the preliminary finding of the

contents of the packets, it was found to be

Narcotics as it was emitting characteristic pungent

smell. The bags were unloaded, counted and Patna High Court CR. APP (DB) No.1109 of 2016 dt.12-05-2023

quantified before the appellant and two other

independent witnesses. The gross weight of the

Narcotics was found to be 560 Kgs. but the net

weight was ascertained to be 520 Kgs. It may be

noted that the packets contained the flowering

seeds and the stalks of the cannabis plant. The

value of the recovered Narcotics was assessed to

be worth Rs. 10,40,000/-, which assessment was

made at the rate of Rs.2,000/- Kg. It further

appears from the records that three homogeneous

representative samples, each weighing 25 gms.

were drawn by mixing representative samples

taken out from different packets and were sealed

before the appellant and two other independent

witnesses. The sealed samples were sent to the

Joint Director, Chemical Laboratory, Customs

House, Kolkata along with the test memo for their

chemical examination. The appellant had disclosed

before the raiding team that he had been driving

the said vehicle for last one year and had loaded

the Narcotics near Narayani, somewhere in Nepal

and had been proceeding towards Raiganj in the Patna High Court CR. APP (DB) No.1109 of 2016 dt.12-05-2023

district of West Bengal. He disclosed the name of

co-accused persons, namely, Nand Kishore Sao

and Sahjada Mallick, both residents of West

Bengal, to be the joint owners of the Tank Lorry.

The appellant further disclosed that he was offered

an amount of Rs. 20,000/- for taking the Narcotics

from Nepal to West Bengal for its sale in the

market.

7. P.W.2 found that two of the chambers of

the Tank Lorry were kept empty in order to mislead

the raiding team and the packets containing

Narcotics were stashed in two other chambers. It

further appears from the records that without any

delay, the samples so collected, numbered and

sealed on 05.02.2010, were dispatched to the Joint

Director, Chemical Laboratory, Kolkata on

06.09.2010. But, it was only on 10.03.2010, that

the report came forthcoming from chemical

laboratory, confirming that the sample sent to it

corresponded positively as ganja. The sample was

in the form of flowering tops consisting of leaves,

seeds and stalks and reflected characteristics of Patna High Court CR. APP (DB) No.1109 of 2016 dt.12-05-2023

ganja. This assessment was made on the basis of

microscopic, chemical and chromatographic

examination; the result of all of which was that it

was ganja. The vehicle also was seized and

summons were issued to the other co-accused

persons. The appellant had confessed that Nand

Kishore Sao, the joint owner of the vehicle had

given him free hand to load anything in case he

needed money for taking to its destination the

Tank Lorry.

8. The raiding team found clear

involvement and complicity of all the accused

persons including the appellant in smuggling ganja

from Nepal to India, thereby making them liable for

being prosecuted for offences under Sections 20(b)

(ii)(C) and 23(C) of the NDPS Act. The other

accused persons were also charged under Sections

27 and 29 of the NDPS Act.

9. It was submitted on behalf of the

appellant that though in the first statement and

the official complaint of P.W.2, it has been shown

that all the formalities under Section 42 of the Patna High Court CR. APP (DB) No.1109 of 2016 dt.12-05-2023

NDPS Act, 1985, had been complied with but in

fact, it had not been complied with. In this context,

he referred to the statement of the witnesses

wherein it has been recorded that samples were

not drawn from all the packets. At the time of

making samples and sealing the rest of the seized

Narcotics, no photograph was taken.

10. From the deposition of the witnesses

including that of P.W.2, it has been argued that no

attempt was made to take the sample in duplicate

as is required under the Standing Instruction Nos.

1/88 and 1/89 of the NCB with respect to search,

seizure and sampling. As on date, it is governed by

the NDPS (seizure, storage, sampling and disposal)

Rules, 2022.

11. The balance of the seized Narcotics

was also never sealed. It has further been argued

on behalf of the appellant that there is nothing on

record to indicate as to where was the rest of the

Narcotics taken. No receiving Register of the

Malkhana has been proved during the course of

the trial. Only one Arvind Kumar Sinha, Godown Patna High Court CR. APP (DB) No.1109 of 2016 dt.12-05-2023

In-charge of Land Customs Station, Raxaul

(P.W.11), has deposed before the Trial Court that he

was in possession of the certificate of disposal of

the Narcotics. This, it has been argued, would not

satisfy the requirements under the NDPS Act, 1885

to fully confirm that the samples which were drawn

from the consignment were the same which was

deposited in the Malkhana and had been destroyed

under the certificate of the Authorities. Not proving

the same is fatal for the prosecution version,

especially when there is a presumption of culpable

mental state against an accused person and very

stringent punishments have been provided for

such offences.

12. Similarly, it has been argued, that none

of the witnesses who were the members of the

raiding team had testified to the fact that there

was any preliminary test by UN Test Kit for P.W.2 to

come to a preliminary conclusion that what was

being seized was Narcotics and not anything else.

Where was the weighment made is also not clear.

Neither P.W.2 nor the other members of the raiding Patna High Court CR. APP (DB) No.1109 of 2016 dt.12-05-2023

team have come up with any specific statement

that they were carrying the weighing machine

along with the team. The other ground raised on

behalf of the appellant is that no report was sent to

the concerned authorities within 72 hours of the

search and seizure of the Narcotics as

contemplated under Section 42 of the NDPS Act.

Lastly, it has been submitted that the complainant

himself has investigated the case and thus it

cannot be said that there was any fair

investigation.

13. The appellant had resiled from his

voluntary and interrogatory statement and had

even raised a preliminary objection before the Trial

Court that he was badly and brutally assaulted by

the raiding party, leading to injuries on his person.

It has wrongly been submitted that the injuries

received by the appellant were caused to him

when he wanted to flee away after jumping from

the Tank Lorry during the course of search.

14. On these grounds, it has been urged

that the conviction and sentence of the appellant Patna High Court CR. APP (DB) No.1109 of 2016 dt.12-05-2023

be declared bad in the eyes of law and facts, more

so when the owners of the Tank Lorry have been

acquitted of all the charges. There is a further

refrain of the appellant that the sentence imposed

against him is way too harsh and the Trial Court did

not take into account relevant factors, especially

that this was the first offence reported against the

appellant and that he was the sole earning

member and a person of young age.

                      15.      As      opposed           to   the   aforenoted

         contentions,           Mr.     Manoj       Kumar     Singh,   learned

advocate for the Union of India, has submitted that

the conduct of the appellant clearly establishes

that he was guilty of smuggling the Narcotics from

Nepal to Indian Border. The fact that he speeded of

the vehicle on being signalled to stop and that he

attempted to flee away is good enough evidence

for a clear inference that the appellant had the

knowledge that in the Tank Lorry, Narcotics were

kept and that there was an attempt of the

appellant to evade the arrest and seizure. He has

further submitted that very adroitly two of the Patna High Court CR. APP (DB) No.1109 of 2016 dt.12-05-2023

secret chambers of the Tank Lorry were kept empty

so as to mislead any raiding team. He further

submitted that from the voluntary and

interrogatory statement, it would appear that the

appellant has not been put to any duress or

coercion and he has accepted the fact that the

Narcotics were loaded somewhere in Nepal to be

brought inside the Indian Borders.

16. In response to the aforenoted

argument on behalf of the appellant that there was

non-compliance of Section 42 of the NDPS Act, Mr.

Singh, for the Union of India, submitted that there

was no prior information to the raiding team about

any Narcotics being transported inside the country.

The interception was made only while routinely

checking the traffic at the Border Land Customs

Station, when the vehicle in question was found

coming from the Nepal side from which there was

huge recovery of ganja. The samples were taken

out from the packets, made into a homogeneous

mixture and then sealed; each of the sealed

packets containing approximately 24 gms. of the Patna High Court CR. APP (DB) No.1109 of 2016 dt.12-05-2023

mixture. Thus only because there is no statement

of P.W. 2 or other members of the raiding team,

that no photograph was taken of the samples or

that of balance of Narcotics was not sealed or that

there is no Register indicating that the balance of

Narcotics were taken to the official Malkhana, the

entire prosecution story cannot be disbelieved.

17. Mr. Singh has further submitted that

according to Section 52A of the NDPS Act, the

Narcotics are required to be destroyed subject to

certain procedure to be followed. 52A(2) enjoins

the authority that where any narcotic drugs,

psychotropic substances, controlled substances or

even conveyances is seized and forwarded to the

concerned officer, an inventory has to be prepared

with total details of the description, quality,

quantity of the narcotics, the mode of packing,

marks and numbers or such other identifying

particulars which would indicate the country of

origin of the narcotics and other relevant facts and

the same has to be forwarded to a Magistrate for

the purposes of certifying the correctness of the Patna High Court CR. APP (DB) No.1109 of 2016 dt.12-05-2023

inventory so prepared. In the presence of the

Magistrate, the photograph of the drugs,

substances and the conveyances are required to

be taken for it to be rendered a true account.

Sample is also required to be drawn in the

presence of such Magistrate, certifying the

correctness of any list of samples so drawn.

Whenever such a request is made by the raiding

authority or the authority seizing such narcotics,

the Magistrate is obligated to allow such requests

and if all these procedures are followed, then the

inventory, the photograph and the list of samples

certified by the Magistrate can be treated as

primary evidence in respect of the evidence.

18. Arvind Kumar Sinha (P.W.11), though

has only produced the certification document

dated 04.11.2012 (Exts.15, 15/1, 15/2 and 15/3)

but it was sufficient evidence to prove that 520

Kgs. of ganja were destroyed. P.W.11 had also

produced Exts.17 to 17/13, in support of charge.

19. Thus, the argument of the appellant, it

has been contended on behalf of the Union of Patna High Court CR. APP (DB) No.1109 of 2016 dt.12-05-2023

India, that there was no compliance of Section 52A

is not correct and as noted above, mere omission

of the witnesses to state such details in their

deposition would not discredit the prosecution

version. He has further submitted that there is a

reason for making stringent provisions and

providing for strict punishment in NDPS case. It

does not remain an offence against an individual

but is an offence against the society and the nation

as a whole.

20. After having heard the learned

advocates for the parties and having perused the

records, we find that most of the requirements

under Section 42 of the NDPS Act, have been

complied with though we have not found any

document on record or from the deposition of

witnesses that a report regarding the seizure was

forwarded to the authorized officer within 72 hours

of the seizure, but such lapse in the present case

would not be fatal to the prosecution case.

21. We also do not find that the samples

were drawn in duplicate before the Magistrate or Patna High Court CR. APP (DB) No.1109 of 2016 dt.12-05-2023

any facsimile of the report was sent to the

Magistrate. But, in the present set of

circumstances, when the sample was drawn

immediately and dispatched to the chemical

laboratory at Kolkata, we have no reason to doubt

the correctness of the prosecution version that the

Narcotics were recovered from a Tank Lorry, which

was driven by the appellant.

22. We do reckon that the deposition of the

P.W.11, is only in lieu of the primary evidence of

the Narcotics which were recovered viz., the

certificate of destruction but that does not prove

anything except that the Narcotics were destroyed

and that its presentation may not be relevant for

deciding the case.

23. Thus for not taking the photograph of

the samples, we are not inclined to reject the

prosecution case in its entirety.

24. However, we do take notice of the fact

that the owners of the Tank Lorry have not been

convicted by the Trial Court; that there is no direct

evidence except for a voluntary statement of the Patna High Court CR. APP (DB) No.1109 of 2016 dt.12-05-2023

appellant which he has resiled that he loaded the

Narcotics at Narayani in Nepal, thus bringing home

the charges under Section 23(C) of the NDPS Act

and; that the appellant had agreed to carry

Narcotics for a paltry amount of Rs. 20,000/-.

25. Considering these aspects of the

matter, in addition to the fact that the appellant

was made accused in this case for the first time

and there being complete absence of anything on

record to indicate that his conduct in jail has not

been satisfactory or that he has evinced any

characteristics, which would tell us that he might

return to recidivism or that he cannot be reformed

and brought to the mainstream of the society, we

hold that the sentence imposed against the

appellant is way too harsh.

26. We have taken note of the fact that the

appellant is in custody since 05.02.2010 and thus

has spent more than thirteen years in jail.

27. We are, therefore, of the opinion that it

would be sufficient if the sentence imposed on the

appellant is reduced to the period which he has Patna High Court CR. APP (DB) No.1109 of 2016 dt.12-05-2023

already undergone in custody along with a fine of

Rs.1,00,000/- (One lac), which is required to be

paid or else the appellant would have to serve the

sentence in case of non payment of fine as has

been ordained by the Trial Court.

28. Thus, the appeal stands dismissed but

with partial modification in the sentence of the

appellant.

29. If the fine is paid, the appellant shall be

released from the jail forthwith, unless his

detention is required in any other case.

(Ashutosh Kumar, J)

( Harish Kumar, J) Rohit/ Sunilkumar-

AFR/NAFR                 AFR
CAV DATE                 NA
Uploading Date           16-05-2023
Transmission Date        16-05-2023