SHIV SHANKAR DIXIT Vs. THE UNION OF INDIA

JUDGEMENT

(1.) (C.A.V.) - The sole appellant has been convicted for the offence under Sec. 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the Act ) and sentenced to undergo rigorous imprisonment for ten years with a fine of Rs.1,00,000.00 and in default of payment of fine to undergo rigorous imprisonment for six months. He has further been convicted for the offence under Sec. 23(c) of the Act and sentenced to undergo rigorous imprisonment for ten years with a fine of Rs.1,00,000.00 and in default of payment of fine to undergo rigorous imprisonment for six months. However, it has been ordered that both the sentences shall run concurrently.

(2.) The prosecution case is that the informant Arvind Kumar Mishra (P.W.1), who happens to be the Inspector, Land Custom Station, Raxaul, filed an official complaint under Sec. 36A of the Act, alleging therein that acting on an specific information, that a tank-lorry bearing registration no. WB-39/8823 concealing contraband Ganja in the chambers of the tank-lorry was expected to cross Indian Boarder through Boarder post at Raxaul from Birganj (Nepal) in the morning hours of 16.09.2009. The Custom Officers of the Land Custom Station, Raxaul, were put on alert, as a result of which, the said tank-lorry was intercepted on 16.09.2009 at about 08:00 hours while just crossing the Boarder Check-Post at Raxaul. On being signaled the said vehicle stopped and the driver of the said tank-lorry, namely, Shiv Shankar Dixit (appellant) was asked to get his vehicle searched. The driver replied that the tank-lorry is empty and showed his reluctance, which further led to suspicion. Then, the driver was asked to get off from the vehicle and also get it searched. Before commencing the search, two independent witnesses of nearby localities available there were requested to witness the search operation to which they agreed. Upon search, it was found that a large number of rectangular packets were secreted in the three out of four chambers of the said vehicle, keeping one chamber of the rear portion empty, ostensibly to dodge the Customs as well as other enforcement agencies, as revealed by the driver in his statement recorded during search and seizure. Few packets were taken out from the chambers of the tank-lorry and they were opened in presence of the two independent witnesses and the driver of the said tank-lorry. The packets so opened appeared to have contained Ganja with characteristic pungent smell. Then the said vehicle was thoroughly searched in presence of the Superintendent (Preventive) and other witnesses and all the packets were found secreted in the three chambers of the tank-lorry which were unloaded in presence of the driver of the said vehicle and the two independent witnesses. During the search of the cabin of the said vehicle, some documents were also recovered i.e. papers relating to said tank-lorry along with the Driving Licence of the driver Shiv Shankar Dixit. Total 249 rectangular packets of different size and weight of contraband Ganja (in moist condition, wrapped with papers, plastic sheets and tied with Sutli) were recovered from the three chambers of the said tank-lorry. The same were quantified and weighed before the said driver and two independent witnesses. The gross weight of Ganja was found to be 2422 Kgs. and the net weight as 2230 Kgs. The value of Ganja was ascertained @ Rs.2000.00 per Kg. as Rs.44,60,000.00, the said tank-lorry was also valued at Rs.7,50,000.00. It is further alleged that in presence of the Superintendent (Preventive) and other witnesses, the above recovered Ganja and the vehicle were seized on 16.09.2009 at 16:00 hours under the provisions of Sec. 43 of the Act for violation of Sec. 8 of the Act under reasonable belief that the same is liable to confiscation under the provisions of Sec. 60 of the Act after observing all the legal formalities and procedure. Five homogeneous representative samples, each weighing 25 grams, were drawn by mixing representative samples from different packets and were sealed before the said accused and two independent witnesses for sending it to the Joint Director, Chemical Laboratory, Customs House, 15/1 Strand Road, Kolkata along with test memo for chemical examination. The voluntary and interrogatory statements of the driver were recorded under the provisions of the Act wherein the involvement of the accused person in the act of smuggling of said recovered Ganja is established. The knowledge and guilt about smuggling/transaction of the contraband Ganja in commercial quantity are established in the voluntary statement of the accused and his interrogatory statement recorded before the Superintendent (Preventive) under the provisions of Sec. 67 of the Act. In his statements, the driver, Shiv Shankar Dixit @ Kallu confessed his guilt admitting that he had committed such illegal act of smuggling, transportation and concealment of contraband Ganja in connivance with Sri Devi Sau and others in the greed of money. The seizure formalities were completed under a Panchnama drawn before the independent witnesses and the accused, two Inspectors of Custom Official, namely, Sri Ashok Kumar and Sri Chandra Prakash and Sri Navin Chandra, the Superintendent of Customs and the copies of the seizure memo and other relevant documents were handed over to the apprehended accused. After the above formalities, the seized 2230 Kgs. Ganja and the seized tank-lorry were taken into custody for further action and the arrested accused Shiv Shankar Dixit @ Kallu was forwarded on 16.09.2009 in the Court of learned District and Sessions Judge, Motihari. The chemical report also shows that the said sample answers positive test for Ganja.

(3.) However, the appellant Shiv Shankar Dixit @ Kallu @ Kalu in his statements admitted that he had committed such illegal act of smuggling, transportation and concealment of contraband Ganja in connivance with Sri Devi Sau and others in the greed of money. However, summons under Sec. 67 of the Act has been issued to Shashi Bhushan Pandey which has been marked as Ext.5 series. The case was instituted on the forwarding report along with seizure memo, panchnama, voluntary and interrogatory statements of the accused Shiv Shankar Dixit @ Kallu @ Kalu and xerox copy of arrest memo under Sec. 43 of the Act for violation of Sec. 8 of the Act on seizure of 2230 Kgs. of Ganja net weight from the tank-lorry no. WB-39/8823 on 09.12.2009. On 09.12.2009 a petition was filed on behalf of the Union of India through Special P.P. Nirmal Kumar praying therein to depute a Judicial Magistrate for certification of narcotics and vehicle kept at Raxaul Custom Godown under the provision of Sections 52A, 52(4) of the Act and accordingly Sri Rakesh Kumar Tiwary, Judicial Magistrate, Motihari was deputed for certification of narcotics and vehicle, in question. Thereafter on 10.12.2009 official complaint along with relevant papers on behalf of the Union of India was filed by the learned Special P.P. and subsequently cognizance was taken on 07.01.2010 on the basis of official complaint. Thereafter on 17.01.2010 certification was made for the disposal of seized goods under Sec. 110(1A) of the Customs Act, 1962 and Sec. 52A of the Act (Ext.8) with regard to the certifying the correctness of inventory as per provisions of Sec. 110(1B) of the Customs Act, 1962 and Sec. 52A of the Act bearing Serial No. 02, GE No. 48/NDPS/09, dated 16.09.2009, Unit Case No. 152/09, dated 16.09.209, NDPS Case No. 89/09, description of the goods Ganja, quantity 2230 Kgs. number of packets 62 jute gunny bags, seizure value Rs.44,60,000.00 and Ext.9 is regarding the certificate of the data for destruction of seized/confiscated narcotics drugs on 28.01.2010, after taking cognizance, charge was framed and trial proceeded. During trial, nine witnesses were examined by the prosecution.