CRIMINAL APPEAL No. 666 of 2007 (S.J.) (Against the judgment dated 08.06.2007 and order of conviction dated 11.06.2007 passed by the 4th Additional Sessions Judge, Motihari,East Champaran in Excise Case No. 12 of 1999) 1. Suresh Singh S/O Dhaneshwar Singh 2. Rabindra Sahani S/O Parma Sahani (Both are resident of Village-Dumaria, P.S.Khajuria, Dist. East Champaran (Motihari). ----(Appellants) -:Versus:- State of Bihar ----(Respondent) For the Appellants : Mr. Kanhaiya Prasad Singh,Sr.Advocate Mr. Ramchandra Sahni,Advocate For the Union of India. : Mr. Sarvadeo Singh,Advocate (C.G.C.) P R E S E N T THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL Kishore K.Mandal,J. Challenge in this appeal is thrown to the judgment dated 08.06.2007 and order of conviction dated 11.06.2007 passed by the 4th Additional Sessions Judge, Motihari, East Champaran in Excise Case No. 12 of 1999 whereby the appellants herein have been convicted under Section 20(b) of the Narcotic Drugs and Psychotropic Substance Act, 1985( hereinafter referred as N.D.P.S. Act ) and sentenced to undergo rigorous imprisonment for 04 years and to pay fine of Rs. 25,000/- In case of default in payment they were directed to undergo further period of 02 years R.I. 2. The back ground facts, in nut shell, are as follows:- 2 P.W.1 Raj Kumar, Inspector, Central Customs, Motihari filed a complaint in the court alleging therein that on 17.03.1999 on getting confidential information a raiding team under the leadership of Shri R.P.Singh, Assistant Commissioner, Customs was constituted consisting of several personnels of the Excise Department. The said team proceeded to village Phulwar within the District of Motihari, East Champaran where they could locate two motorcycle(s) coming from Phulwar side. They signaled them to stop. One of the motorcycle(s) bearing registration mark and No. PNB/3936 stopped where as the another motorcycle bearing registration mark and No.BR/098/3401 sped away. Two persons were found riding on each motorcycle. As per the prosecution case, riders of motorcycle bearing no. BR/098/3401 managed to flee away leaving behind the motorcycle they were riding on. Both the motorcycle(s) were thereafter searched. In course of such search, 4 packets of ‘ganja’ were recovered from the motorcycle bearing registration mark and No. PNB/3936 which was/were found concealed under the seat and in the dickey. Three packets of ‘ganja’ were also allegedly recovered from the motorcycle bearing registration mark and No. BR/098/3401 concealed within the seat and dickey of the said motorcycle. The two persons who were found riding motorcycle bearing registration mark and No.PNB/3936 were interrogated and they disclosed their names as Suresh Singh and Rabindra 3 Sahani, the present appellants. They gave out their details of residence etc. The prosecution case further is that as it was getting dark and place where the motorcycle(s) were intercepted was a lonely place both the motorcycle(s) along with the recovered ‘ganja’ and the arrested accuseds (appellants) were brought to the Custom Office at Motihari. At the Customs Office the packets of ‘ganja’ so recovered from the motorcycle of the present appellants was weighed at 18.5 K.Gs. Voluntary statements of the appellants (Exhibit 2 and 2/A) were thereafter recorded. In such statement, the appellants are said to have stated that ‘ganja’ and the motorcycle(s) belonged to one Kishori a resident of Main Road, Raxual and they were only carrying them for being sold in small quantities. The ‘ganja’ so recovered from the motorcycle of the present appellants was seized under a seizure memo (Exhibit-1). A punchnama (Exhibit-4) was accordingly drawn up. Subsequently, the samples were drawn from the seized ‘ganja’ and sent to the chemical laboratory, Customs House, Kolkatta for its chemical analysis. The test report (Exhibit-6) was submitted which confirmed that the articles/substance so seized from the motorcycle occupied by the present appellants was/were ‘ganja’. On completing the preliminary enquiry and other formalities, P.W.1 submitted a complaint (Exhibit-5) whereon learned Special Judge, took cognizance of the offence on 24.05.1999. Subsequently, the case was transferred to the file of the 4 present Trial Judge for trial and disposal. 3. On the basis of the said allegations and the materials brought on record in course of enquires and verification, the learned trial court framed charges under Section 20(b) of the N.D.P.S. Act against the appellants which was read over and explained to them. The appellants abjured guilt and claimed to be tried. 4. In order to bring home the charges, the prosecution examined altogether 12 witnesses. P.W.1 is the informant himself, namely, Raj Kumar, Inspector of Central Excise. P.W.2 R.S. Pandey, P.W.3 Dilip Kumar, P.W.4 Badaku Murmu, P.W.5 Ram Naresh Choudhary, P.W.6 Ghanshyam Prasad, P.W.7, Ramakant Yadav, P.W.8 Nandu Ram, P.W.9 Surendra Pandey are the Central Excise officials/personnels of the Central Excise Department who on the relevant date had constituted the raiding team and therefore was/were part of the team. P.W.10 Vinay Kumar Sinha is the Superintendent, Central Excise, P.W.11 Lakhi Narayan Das is the Godown Incharge of the Customs Department. P.W.12 Ashok Mahto is a formal witness who has proved punchnama (Exhibit-4) and complaint (Exhibit-5). The prosecution has also proved and brought on record the seizure memo (Exhibit-1), voluntary statements made by the two appellants ( Exhibits 2 and 2/A), page No.2 of the destruction report(Exhibit-3), Punchnama (Exhibit-4), complaint (Exhibit-5) and Chemical analysis Report 5 (Exhibit-6). The defence also adduced evidence in the shape of D.W.1 Raghaw Prasad Gupta. 5. Learned trial court on appraisal of the evidence so brought on record found and held in paragraph no.13 as under: “The oral evidence and documentary evidence are consistent to show that these two accused were arrested alongwith the motor-cycle and on search 4 packets of ganja were recovered from their motor-cycle whereas their associate fled away leaving the motor-cycle and on the search of that motor-cycle two packets of ganja were recovered. Since both motor cyclist were going together carrying ganja, therefore presumption will be that these two accused had also knowledge of carrying of ganja by other motor cyclists. The chemical report has confirmed that seized articles were ganja. Even the defence witness has confirmed that these accused were arrested by the Customs Department along with ganja. Thus the evidence of the witnesses is trustworthy and crediable.” 6. Learned counsel for the appellants while assailing the impugned judgment confined his argument only on the quantum of sentence. This court was not addressed on the merit of the findings so recorded by the learned trial court and, as such, those findings are hereby confirmed. 7. Learned counsel for the appellants submits that the occurrence in the present case had taken place in March,1999. There is no finding that these appellants had 6 any proven criminal records. Referring to the last page of the judgment it has again been highlighted that in fact the present appellants are the first offenders. It has thus been argued that since 1999 i.e. more than 10 years by now they have been undergoing the rigours of trial and appeal. Learned counsel for the appellants further submitted that the trial in the present case shall be governed by the N.D.P.S.Act 1985 as it stood prior to amendment effected on 02.10.2001. Learned counsel for the appellants looking to the records of the case submits that the present appellants have remained in custody (inclusive of pre and post conviction) for three years and two months. On the strength of these facts learned counsel for the appellants submits that the appellants deserve a lenient sentence. Learned Counsel for the Union of India, on the other hand, did not dispute the length of incarceration already undergone by both the appellants but submitted that they were found engaged in smuggling of ‘ganja’ and therefore they do not deserve a lenient view in the matter. 8. Having reflected over the matter thoughtfully, this court is of the considered view, that following sentence(s), in the facts and circumstances of the case, shall subserve the interest of justice: Both the appellants are sentenced to the period already undergone by them. They are also imposed a fine of Rs. 10,000/- and in default thereof to undergo further period of R.I. for three months. 7 It has been pointed out that both the appellants after conviction continue to remain in jail custody as they were not granted privilege of bail after conviction. This court, therefore, directs that no sooner the fine so imposed upon both the appellants are deposited they shall be released from the jail custody forthwith, if not required in any other case. 9. In the result, the appeal stands dismissed with modification in sentence as noted above. Patna High Court, Dated the 24th February,2009 Sym/NAFR. ( Kishore K. Mandal, J.)