SHATRUGHAN PANDEY Vs. UNION OF INDIA

JUDGEMENT

(1.) This criminal appeal has been filed against the judgment and order dated 9.9.2008, whereby the accused-appellant Shatrughan Pandey has been sentenced 13 years' rigorous imprisonment and fine of Rs. 2.00 lakhs under Section 8/20 (b) (ii) (C) of N.D.P.S. Act and in default of payment of fine, 3 years' additional rigorous imprisonment.

(2.) The complaint filed against the accused in the court below contains following facts in brief. In the complaint filed by Inspector of Customs, Radheshyam Dubey, posted at Customs (Prevention) Circle Basti, District Basti, it is stated that on 12.10.2006 at about 00.15 hours, a team of Custom Officials (Prevention) Circle, Basti was constituted comprising Shri V.K. Pandey, Superintendent, Shri Rajkumar, Inspector, Shri Neeraj Kumar Rai, Inspector, Shri K.N. Singh, Hawaldar, Shri Radheshyam Contingency worker and Shri G.S. Vishwakarma Driver, alongwith independent witnesses Shri Chandra Bhan and Shri Dilshad Ahmad for daily routine preventive checking. This team reached near Chainpur Chauraha on Gorakhpur-Faizabad Road by Government Gypsy and started checking the vehicles coming from Gorakhpur side. At about 3.00 hours a truck bearing No. HR-38B/9697 was seen coming, which was signalled to stop by the Custom Officials. They found Shatrughan Pandey (accused-appellant) and Vikas Kumar (the other accused) as driver and cleaner of the truck. Both of them were acquainted with the identity of the officers and were told to get their truck checked. The driver did not make any objection, following which the truck was checked and it was found carrying iron scrap. The papers were demanded to be shown relating to the loaded goods, upon which the accused No. 1 Radheshyam Pandey handed over Bill No. 17 dated 9.10.2006 issued by M/s. Raj Steel Traders, Akhraghat Road, Mirzapur, in which the weight of iron scrap was mentioned as 15375 Kgs. valuing Rs. 1,61,437 and another paper was relating to sweet-supari and gutka, which was issued by M/s. Maan Kali Enterprises, Banda (Bihar) on its letter pad, which also disclosed that an intimation was sent to Shri Ash wan i Kalra, New Delhi to get back the damaged consignment of gutka and sweet-supari. Upon receipt of the direction of the officers, both the accused ascended the truck and began to untie the canvas (Tirpal). Thereafter the officials and the witnesses also climbed into the truck and it was found that on the upper side, bags of gutka and sweet-supari were kept while in the bottom of the truck, iron scrap was filled. When the bags of gutka/sweet-supari were being removed, some different kind of packets also emerged beneath the bags. Sensing some doubt, those bags were separated by the officials, 10 in number, and when they were opened, ganja was found inside. On interrogation the accused No. 2, Vikas Kumar, cleaner denied any contraband while accused No. 1, Shatrughan Pandey told that all the consignments i.e., ganja, gutka/sweet supari and iron scrap were loaded from the Godown of M/s. Sona Carrying Corporation, N.H. 28, Chandni Chowk, Motihari (in front of patrol pump) Muzaffarpur and the goods were loaded on the direction of a person called Pappu from the Godown of transport and Pappu had told them to cariy 10 packets ganja to Ghaziabad safely. On the request of accused No. 1, the truck loaded with goods along with both the accused and witnesses, were taken to Customs Office, Basti for the purpose of safety, where all the packets of ganja were unloaded and kept aside. Remaining 34 packets of gutka/sweet supari were found weighing 975.00 Kgs. and 565.00 Kgs. (loose gutka) in weight and iron scrap weighing 15375 Kgs. Since all these bags of gutka, sweet supari and iron scrap were used in concealment of ganja, they were taken into custody by the officers. When the search of cabin of truck was carried out, papers of vehicle were recovered which revealed that accused No. 1 was registered owner of the truck and the driving licence was also in his name, so all these documents were also taken into custody. Adhering to the provisions of Section 50 of N.D.P.S. Act, 1985, the accused persons were informed of their right to be searched before a Gazetted Officer or a Magistrate, to which they responded by saying that they had their consent for being searched before the Custom Officers of Gazetted rank. Thereafter the personal search of the accused was conducted but nothing objectionable was found except that Rs. 1,100 was recovered from the person of accused Shatrughan Pandey, which were returned to him at once. Thereafter samples (samples of 50 gram each) of recovered ganja were drawn and sealed in presence of the witnesses and on weighing, the remaining ganja of 10 packets was found to be 141 Kgs. valuing Rs. 4,23,000. Upon reasonable belief that the same had been transported in contravention of Section 8/20 (b) of N.D.P.S. Act and the provisions of section 11 of the Customs Act 1962, the said material was liable to be confiscated, hence the entire remaining quantity of ganja was sealed and seised and the signatures of accused, witnesses and officials were also taken on all the packets. The truck was also seised and recovery memo was prepared. The seizure was completed on 12.10.2006 and the signatures of accused, officers and witnesses were obtained thereon. Further interrogation was made of Shatrughan Pandey, who disclosed that Shri Pappu of "Sona Carrying Corporation Muzaffarpur" had told him to make contact with M/s. Indian Cargo Transport Company, plot No. 8, Transport Nagar, Ludhiana, on phone, on reaching Transport Nagar, Ghaziabad, where somebody would come and collect the goods. He had also spoken to them to hand over all the packets of ganja and gutka/sweet supari safely to him at Ghaziabad and thereafter he was supposed to unload the iron scrap at M/s. Goel Enterprises, Shamli bypass road Muzzaffar Nagar. On being interrogated by the officers as to why did he indulge in this illegal work, he replied that Mr. Pappu had lured him to get appropriate reward and that is why he had done this work for the first time. The statement of Shatrughan Pandey was recorded on 12.10.2006, in which he stated that he was owner and driver of truck No. HR 38B-9697. On 10.10.2006 he loaded 15375 Kgs. iron scrap and 34 bags of gutka/sweet supari from M/s. Sona Carrying Corporation, where 141 Kgs. ganja was also loaded by one Shri Pappu of M/s. Sona Carrying Corporation, which was in his knowledge. He was instructed to go to Ghaziabad and had to halt near Sales Tax barrier and to contact on phone the number mentioned in the challan form of Indian Cargo Transport Company and some one from that company would have taken the gutka and ganja. Later on he had to carry scrap to Raj Steel Traders Muzaffar Nagar, but was intercepted by them. Similarly the co-accused Vikas Kumar also stated in his statement recorded the same day that he was cleaner of the truck and was told that on 10.10.2006 accused Shatrughan Pandey had loaded iron scrap and other goods in Muzaffarpur and had told him that he would have to go to Ghaziabad first and thereafter Muzaffar Nagar. He was unaware about the loading of ganja. On 13.10.2006 the statement of both the accused persons were recorded under Section 67 of N.D.P.S. Act and section 108 of Customs Act, 1962, before Shri V.K. Pandey, Superintendent, Customs, Circle Basti, in compliance of summons issued to them on 12.10.2006, in which they made their statements as above. Thus, the accused persons had knowledge and were wilfully involved in transportation of ganja for monetary consideration in violation of the provisions of Sections 8/20/29 of N.D.P.S. Act, 1985, and thereby rendered themselves liable for action under Sections 8/20/29 and 43 of the N.D.P.S. Act. Since, there were adequate reasons for them to be arrested, they were duly arrested on 13.10.2006 under Section 43 of the N.D.P.S. Act for transporting ganja and the ground of arrest was disclosed to them. Before sending them to judicial custody, they were produced before the court and were lodged in District Jail Basti. Further it is mentioned in the complaint that on 22.11.2006 summons under Section 67 of the N.D.P.S. Act through Customs Superintendent Shri V.K. Pandey was issued in the name of Pappu. On the basis of his involvement being found in the form of abetment and conspiracy for loading and hiding contraband weighing about 141 Kg. in truck number IIR 38 B-9697 as per the statement of accused Shatrughan Pandey, but he did not appear. His complicity in the case was found punishable under Section 29 of the N.D.P.S. Act, for which separate complaint would be filed. After preparation of the inventory and site plan, the sample of contraband ganja was also sent for chemical analysis and a report was prepared by the Assistant Director, Government Opium and Alkaloid Works, Ghazipur, confirming that the sample under reference was found to be ganja (Cannabis) within the meaning of N.D.P.S. Act, 1985. The accused persons were arrested after compliance of provisions of N.D.P.S. Act as well as the direction of the Supreme Court of India, hence the complaint was being filed. It was prayed that the accused be summoned from jail to face trial and be punished under relevant sections and the truck found involved in transportation of illegal ganja be also seised.

(3.) The complainant filed 29 documents in support of his complaint. The accused Shatrughan Pandey was summoned from District Jail and after making compliance of Section 207, Criminal Procedure Code, 1973 the accused was charged under Sections 8/20 and 29 of N.D.P.S. Act, to which he pleaded not guilty.