NDPS - Connection of contraband with appellant was clearly established after which burden was on appellant to show that he had effected sale to an authorized person: SC
By TIOL News Service
NEW DELHI, SEPT 26, 2016: THE trial court convicted and sentenced the appellant under the NDPS Act, 1985 for illegal sale of 30 Kgs. of poppy straw to the co-accused, who did not have valid licence as per the Maharashtra NDPS Rules, 1985 but also for illegal possession of commercial quantity of poppy straw powder.
On appeal, the High Court partly allowed the appeal, quashed and set aside the conviction and sentence for illegal possession of commercial quantity of poppy straw powder but upheld the conviction and sentence for illegal sale transaction of 30 kgs. of poppy straw powder. The High Court also upheld the conviction of co-accused for abetment of the said offence by purchasing 30 kgs. of poppy straw powder from the appellant without any valid licence and permit. The appellant has undergone the sentence during pendency of the proceedings.
Before the Supreme Court, the appellant submitted that conviction and sentence awarded to the appellant was unsustainable. Inasmuch as inter alia the statement of the accused under Section 67 amounted to confession before police and was not admissible as held in Tofan Singh - 2013-TIOL-51-SC-NDPS , Raju Premji - 2009-TIOL-68-SC-NDPS; that the appellant was in custody at the time of recording the statement and hence is not voluntary.
The counsel for the State while supporting the conviction and sentence of the appellantsubmitted that concurrent finding of the courts below is based on evidence and the same is not liable to be disturbed in an appeal under Article 136 of the Constitution; co-accused from whom recovery was effected has not even challenged his conviction; appellant never retracted his statement under Section 67 to the effect that the contraband recovered from co-accused was sold by the appellant and that the said co-accused had no licence to purchase the contraband and thereby the appellant contravened the conditions of his licence;that appellant was not in custody when his statement was recorded as is clear from the statement of PW2, who recorded the statement.
The Apex Court while noting that there was no merit in the submissions of the appellant inter alia observed -
++ Both the courts below have concurrently held that the appellant was found to have sold the contraband to the co-accused without any licence. The said finding, inter alia, is based on the evidence of PW1, Inspector of Customs who seized the contraband from the co-accused-Karim Patel.
++ Further, the evidence in the form of statement of the appellant himself under Section 67 of the Act before his arrest clearly shows that the appellant had sold the contraband to the co-accused- Karim Patel who did not have any licence to purchase thereof.
+ Even otherwise, the connection of contraband with the appellant was clearly established after which the burden was on appellant to show that he had effected sale to an authorized person.
++ Recovery from the co-accused was from an open place to which Section 42 of the Act is not attracted. At the time of production of gunny bag no objection was raised on behalf of the appellant that the bag did not carry any label or sign of identity. Thus, the absence of label and sign of identity could not be presumed. The samples were duly tested by the chemical analyzer and were found to be intact. There is, thus, no serious infirmity in the findings recorded by the courts below in convicting and sentencing the appellant.
++ Apart from the finding that present case is governed by Section 43, there is no ground to interfere with the concurrent finding of the Courts below that there is adequate compliance of Section 43 of the Act.
While holding that the contention on the basis of the judgments relied upon by appellant cannot be accepted, the Supreme Court added -
++ The prosecution version is based not only on the statement under Section 67 but also on the evidence of recovery of the contraband immediately after sale and the circumstances showing that the contraband was sold by the appellant to the co-accused, without any authorization.
Concluding that there is no ground to interfere with the conviction and sentence awarded to the appellant, the appeals were dismissed.
(See 2016-TIOL-161-SC-NDPS)
