By way of instant criminal appeal, challenge has been made to the the judgment and order of conviction dated 18.12.2012 passed by the Additional Sessions Judge, Court No.11, Varanasi, in Special Session Trial No. (Case No.) 168 of 2009 Union of India through its Intelligence Officer, A.N.C.B. Lucknow Vs Vanshidhar Kharwar, arising out of NCB Case Crime No.14 of 2008 under Sections 21, 25, 27 Ka, 29 N.D.P.S. Act, Police Station- Chetganj, District- Varanasi whereby the accused-appellant has been sentenced under each of the aforesaid charges to undergo 11 years rigorous imprisonment with fine Rs.1,10,000/-, in default of payment of fine, additional one year imprisonment. All the aforesaid sentences have been directed to run concurrently.
Heard Sri Gaurav Kakkar, the learned counsel for the appellant, Sri Sanjay Kumar Singh, the learned counsel for the Union of India and perused the record.
It has been informed that the accused-appellant is in jail since 06.11.2008 in this case. Therefore, he has suffered incarceration about 9 years and 8 months in this case.
The facts necessary for adjudication of this appeal as reflected from the record appear to be that a complaint was lodged by the Intelligence Officer, N.C.B. Lucknow under Sections 8/21/25/27A/29 N.D.P.S. Act at Police Station Chetganj, District Varanasi whereupon the case was registered and the accused-appellant was tried by the Additional Sessions Judge, Court No.11, Varanasi.
Relevant facts stated in the complaint appear to be that on 06.11.2008, the Intelligence Officer N.S. Bisht of the concerned N.C.B. Office received tip off information through the informer that the accused-appellant has kept huge quantity of Heroin at his home situated at I.T.I. Chaukaghat, Campus. Varanasi. The accused-appellant is stated to be peon in the office of I.T.I. Chaukaghat, Campus. Varanasi. It was also informed that delivery of Heroin is to be supplied to the Heroin smugglers in the afternoon.
This tip-off information was conveyed to the higher N.C.B. Authorities and a team was constituted. It is gathered that the team of N.C.B. also took the local police personnel of the police outpost Nati Imali which falls within Police Station Chetganj, District Varanasi and set out for the spot on 06.11.2008 at 1:15 p.m. where the raiding party met with two persons, who were standing over there, that they have come here for search and asked them to be independent public witnesses. Both the persons agreed to be witness, then the raiding party along with these two independent public witnesses arrived at the house of the accused-appellant where they found the accused-appellant present at his home. The accused-appellant was introduced to the raiding party and after complying with the mandatory provisions of Section 50 of N.D.P.S. Act, the search was made. Upon search being made, 32 polythene packets of dusty brown powder and weighing equipment with measurement weights of different quantity and several articles were recovered. In the courtyard of the house, dusty brown powder in 5 polythene packets was recovered from toolbox of the motorcycle U.P. 65 AF -3502. When the recovered substance was tested by the raiding party by its field drugs test kit then the substance was discovered to be Heroin. The accused-appellant also told the substance to be Heroin.
After lot of inquiry from the accused-appellant, he gave various explanation regarding possession of the aforesaid substance. The recovered substance was weighed on the spot by one of the equipments carried by the raiding party and then it was found to be weighing 1kg, 500g and the substance recovered from total packets of the aforesaid motorcycle weighed 500 gram. 5 grams of sample from each of the aforesaid substance was taken out and kept in two separate polythene packets and was sealed with hot seal and the same was also kept in two different envelopes. The remaining recovered substance i.e. 1990 grams having been sealed by hot seal was packed in the polythene packet and kept in envelope and stitched after having been wrapped with cloth. Thus, sealing of all the recovered substance and packets was done by the raiding party at the same time, the two public witnesses, accused-appellant and official/officers both of N.C.B. department appended their endorsement thereon. The aforesaid motorcycle U.P. 65 AF - 3502 was also seized and taken into custody. No worthy paper of the aforesaid motorcycle was found on the spot.
Recovery memo was prepared after complying with due provisions of the recovery and signature of the accused-appellant, public witnesses and the team members of N.C.B. was appended on it and copy whereof was handed over to the accused-appellant.
Voluntary statement of the accused-appellant was also recorded under Section 67 of N.D.P.S. Act wherein he has stated that on 06.11.2008, 2kg of Heroin was recovered from his house. He also disclosed that he has been working as peon in I.T.I. Chaukaghat, Varanasi since 1980 and obtained possession of the house in 1997. He is acquainted with one Swaminath @ Dada since 1986 but nephew of Swaminath @ Dada, Dileep @ Natey and Vinay Singh used to visit his home. Swaminath @ Dada had kept the aforesaid Heroin at his house prior to his leaving for pilgrimage Vaishno Devi. He also informed that the recovered substance is Heroin. He added that he was not given any rent for keeping Heroin in his custody but Swaminath @ Dada used to give sweets and money to his children when he visited his home. Further narrated that Atul Singh resident of Kapsethi, Vinay Singh resident of Madiyanhu and Munnu Pradhan resident of Aurai used to visit his home and from their conversation, it transpired that they are involved in the business of Heroin. The accused-appellant also admitted in his statement that he was in the knowledge of thing that he has kept Heroin at his home but he was under impression that his children get some money and sweets, therefore, he assisted them. Since the accused-appellant was not highly educated and was a peon, he got his statement written through public witness Arun Singh after dictating the same to him.
The accused-appellant acted in violation of Section 8 of the N.D.P.S. Act by directly or indirectly involving himself in the business of the recovered contraband Heroin which act is punishable under Sections 21, 25, 27A and 29 of N.D.P.S. Act.
After the voluntary statement of the accused-appellant was recorded under Section 67 of N.D.P.S. Act, he was taken into custody by the N.C.B. Authority after complying with the mandatory requirements under N.D.P.S. Act. The statement of the public witnesses was also taken down as per requirement of Section 67 of N.D.P.S. Act.
The accused-appellant along with the recovered substance was produced before the Remand Officer - Additional Sessions Judge, Court No.14 - Varanasi - on 07.11.2008 whereupon he was sent to the District Jail, Varanasi and the recovered substance was directed to be kept in the departmental godown of the N.C.B. after obtaining orders from the competent court (on 07.11.2008). The sample of Heroin was also sent for chemical examination at C.R.C.L. New Delhi on 08.11.2008 which report, at the time of presentation of the complaint, was awaited and it was described that as soon as the report is obtained, the same shall be submitted before the court concerned.
Since the accused-appellant was posted as peon in the I.T.I. Chaukaghat, Varanasi, the information of his arrest was given to the Director, I.T.I. Chaukaghat Varanasi, on 08.11.2008. It was disclosed in the complaint that the accused-appellant had violated provisions of Section 8 of N.D.P.S. Act, thus his act is punishable under Sections 21, 25, 27A and 29 of N.D.P.S. Act. It was also disclosed in the complaint that the investigation against Swaminath @ Dada, Dileep @ Natey and Vinay Singh is currently underway and they have been asked about the recovery of the aforesaid Heroin by issuing summons to them, but they refused to accept the fact that they have any role in the aforesaid business of Heroin. On inquiry being made by the N.C.B. personnel, it transpired that motorcycle U.P. 65 AF 3502 is registered in the name of minor daughter of Dileep Yadav, resident of Khusmalipur, Badagaon, Varanasi. The investigation against other persons say - Atul Singh, Munnu Pradhan was also underway. The complaint also disclosed fact that in case any other person is found to have been involved in the aforesaid business of Heroin, then the matter shall be brought before the court concerned.
It was prayed in the complaint that the accused-appellant be punished for committing the offence under Sections 8/21/25/27A/29 of N.D.P.S. Act and the substance recovered be seized. The complaint is Ext. Ka-12.
On the aforesaid complaint, cognizance was taken by the Sessions Judge, Varanasi, on 05.05.2009 who directed the complaint to be registered. The accused-appellant was summoned and his attendance was recorded and the original papers were kept under seal.
In due course, the case was transferred by the Sessions Court to the III-Additional Sessions Judge, Varanasi for conduction and disposal of the trial. Lastly, it was transferred to the aforesaid trial court - the Additional Sessions Judge, Court No.11 - Varanasi for disposal.
On the basis of the record, the prosecution and the accused-appellant were heard on the point of charge. Charges under under Sections 8/21/25/27A/29 of N.D.P.S. Act were framed against the accused-appellant and the same were readover and explained to him who denied the same and claimed to be tried.
To prove its case, the prosecution examined the Intelligence Officer, S.N. Bisht PW-1 and Sanjay Kumar Tiwari PW-2, both the witnesses of fact. In documentary evidence, certain papers were produced and proved by the prosecution. Compliance report involving provisions of Section 50 of N.D.P.S. Act - is Ext. Ka-1, the statement of the accused-appellant was recorded on the very same page-paper sheet which is Ext. Ka-2, recovery memo is Ext. Ka-3, voluntary statement of the accused-appellant under Section 67 of N.D.P.S. Act is Ext. Ka-4, arresting memo is Ext. Ka-5, the voluntary statement of public witness Arun Singh under Section 67 of N.D.P.S. Act is Ext. Ka-6, the approval letter of the concerned court dated 07.11.2008 is Ext. Ka-7, whereby various material concerning the aforesaid case was directed to be kept in the departmental godown of N.C.B. Letters sent to the Forensic Laboratory at New Delhi dated 08.11.2008 are Ext. Ka-8 and Ext Ka-9, compliance report pertaining to Section 57 of N.D.P.S. Act is Ext. Ka-10, letter written to the Joint Director, I.T.I. Chaukaghat, Varanasi is Ext. Ka-11.
Thereafter evidence for the prosecution was closed and statement of the accused-appellant was recorded under Section 313 Cr.P.C. wherein the accused-appellant virtually admitted the recovery of Heroin from his house, however he expressed ignorance about arrival of the police and N.C.B. team at his home. He denied the claim raised by the prosecution that the search was witnessed by public witnesses Sanjay Mishra and Arun Singh and also claimed that the house from where recovery was effectuated was never occupied by him and he had no concern with that house. He has further stated that he was not searched before any Magistrate or Gazetted Officer. The bag from where Heroin was recovered was never possessed by him nor was any information given by him to the N.C.B. team. No proceeding took place as alleged by the prosecution. However, everything was done and completed at Police Station Chetganj, District Varanasi. He has nothing to do with the recovered motorcycle.
The accused went on to add that no substance was recovered from him. Nothing was sealed before him. The original substance allegedly recovered on the spot was not produced at the time of the cross examination of PW-1 and PW-2. The accused-appellant was not given fair time to cross examine the prosecution witnesses. He was not given copy of any arresting memo. No such copy or memo was recovered from him at the time when he was lodged in the lock up at station Chetganj. The higher authorities (of N.C.B.) to whom the information was claimed to have been sent have not been produced before the court. All the documents proved are fake and he has been falsely implicated in this case on account of enmity with his opponents. He does not carry any criminal history to his name. He will file written statement apart from above. He has claimed that his signatures were obtained by the raiding party on a blank sheet after he was wrongly arrested by them.
No evidence, whatsoever, was led by the defence. However, the accused-appellant got summoned two witnesses along with documents but they were not produced, whereas, one of the witnesses died.
As a sequel to it, the case was posted for extending arguments pros and cons by the parties and after vetting the case on merits, the learned trial Judge returned finding of conviction against the accused-appellant and passed the aforesaid sentence.
Consequently, this appeal.
At the very outset, merit of the case was tried to be touched and this Court was persuaded to believe in falsity of the present case and the entire proceeding was claimed to be a conspiracy hatched in collusion with the opponents of the accused-appellant who were inimical to him. The creditworthiness of the prosecution witnesses was challenged that they are highly tutored and their testimony is full of embellishment, concoctions and improvements. It was urged that the public witnesses arranged by the N.C.B. team are resident of distant place than the locality of the accused-appellant. Therefore, proceeding cannot be said to have been witnessed by any independent pubic witness of the locality. The trial court erroneously recorded conviction and passed aforesaid sentence.
However, when certain queries were raised to the learned counsel for the accused-appellant touching on legal and factual aspects of the case then he relinquished his prayer seeking acquittal of the accused-appellant for charges under aforesaid sections of N.D.P.S. Act and claimed that he has no objection to the conviction recorded by the trial court, he would take back his arguments which was advanced on merit of the case (hereinabove) but urged the Court to consider sympathetically the sentencing part of the judgment impugned by claiming that the sentence awarded is too harsh. Lesser sentence was sought to be imposed in place of the sentence awarded by the trial court on the ground that the accused-appellant is a poor man and is peon in I.T.I. Chaukaghat Varanasi. He has been sentenced to 11 years rigorous imprisonment under each charge numbering 4 in all along with fine and has been lodged in jail since 06.11.2008 the day on which he was taken into custody by the N.C.B. team (in company with the police personnel of Police Station Chetganj, District Varanasi). That way, he has already suffered incarceration for 9 years 8 months. Now only one year four months remained to be served for the sentence awarded to him by the trial court.
Specific plea was raised that the minimum sentence prescribed for the four charges (Sections 21, 25, 27A, 29) proved mandates that an accused shall be punished with rigorous imprisonment for a term which shall not be less than 10 years ...... and fine not less than 1 lakh rupees.... then looking to the poor condition of the appellant minimum sentence be imposed on him.
Learned counsel appearing for N.C.B. retorted to aforesaid submission and urged that the prosecution story on the face inspires confidence. The entire episode is coherently stitched in such manner that any possibility of false implication of the appellant in the case, per se, stands ruled out and no worthy argument has been extended on behalf of the accused-appellant as to how and why the real culprit will be spared and in place of him, the accused-appellant will be falsely implicated in this case. There is no anomaly in the entire prosecution case and the charges under Sections 21, 25, 27A and 29 of N.D.P.S. Act stand proved beyond all reasonable doubt. The trial court after adverting to the aforesaid aspects of the case and vetting the merits rightly recorded the finding of conviction based on material on record.
Also considered the above submissions.
On the sentencing of an accused, it is primary duty of the Court to consider all the relevant aspects of the case and to pass just sentence conformable to the offence touching on the gravity of the offence vis-a-vis mitigating factors and a balance should be arrived at while analyzing and scrutinizing the aforesaid factual as well as legal aspects. In this case, obviously the sentence under aforesaid various charges say - Sections 21/25/27A/29 of N.D.P.S. Act has been awarded to the magnitude of 11 years each coupled with fine (Rs.1,10,000/-) and in default of payment of fine the accused would have to suffer additional one year imprisonment.
In this case, it is obvious that Heroin was recovered from the house of the accused-appellant. His voluntary statement under Section 67 of N.D.P.S. Act should be pointer and serve as a guide for awarding the sentence which aspect of the case probably has not been gone into by the trial court. If the statement of the accused-appellant has been claimed to be voluntary then it is apparent by his explanation that no doubt the possession of Heroin was there but that was possessed on behalf of Swaminath @ Dada who, in fact, kept Heroin in the house of the accused-appellant and in consideration of the same, he used to give some money and sweet to his children and he was under such allurement that his children would get money and sweet. If this is accepted position then possession of noxious substance so recovered and seized becomes punitive. That way conviction is justified but the sentencing part may be considered sympathetically.
Since the aforesaid charges provide minimus sentence of imprisonment for a term not less than 10 years then after considering the fact that the accused-appellant has no criminal history and considering entirety of the case, when it is taken as a whole then interest of justice would be served if the sentence of 11 years rigorous imprisonment awarded by the trial court for each of the charges 21/25/27A/29 of N.D.P.S. Act is hereby altered and commuted to the sentence of ten years and one month rigorous imprisonment for each of the aforesaid four charges and rest of the sentencing order pertaining to imposition of fine under the aforesaid each Sections as imposed by the trial court shall remain untouched. Meaning thereby that the sentence of 11 years rigorous imprisonment is hereby commuted to a period of 10 years and 1 month rigorous imprisonment and the rest of the order passed by the trial court qua the sentencing part of the accused-appellant is hereby maintained.
In the result, the instant appeal is dismissed insofar as it relates to the conviction of the accused-appellant under aforesaid 4 charges, whereas, the instant appeal is partly allowed in the aforesaid terms. The sentencing part stands modified accordingly.
In this case, the appellant is in jail since 06.11.2008. He shall serve out the remaining sentence so imposed on him as above.
Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.
Order Date :- 31.07.2018 rkg