Assuming an accused, realized that Ganja was being loaded, he could perhaps do little but to remain a mute spectator: Supreme Court

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 378 OF 2021 Arising out of S.L.P.No. 1987 2021 .APPELLANT THE STATE OF CHHATISGARH .RESPONDENT JUDGMENT This appeal is against a judgment and order dated 26 03 2018 passed by the High Court of Chhattisgarh at Bilaspur in CRA No.113 of 2012 upholding the conviction of the Appellant under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act 1985tried to escape but was apprehended and the said truck was searched. In course of the search 3327 kgs of ‘Ganja’ was found concealed in the said truck with Onion bags. The driver T Narsaiya since deceased and the Appellant were taken into custody and criminal proceedings initiated against them under the NDPS Act By a judgment and order dated 14.12.2011 the Special Judge NDPS Act Bastar at Jagdalpur found the Appellant and the said Narsaiya guilty under Section 20(b)(ii)(C of the NDPS Act and sentenced them to maximum punishment of 20 years of rigorous imprisonment and fine of Rs.2 lacs Both Narsaiya and the Appellant appealed to the High Court. While the appeal in the High Court was pending Narsaiya died. By the impugned judgment and order dated 26 3 2018 the High Court affirmed the conviction of the Appellant but modified the sentence to 15 years rigorous imprisonment instead of 20 years and reduced the fine to Rs.1 lac from Rs.2 lacs. Aggrieved by the judgment and order impugned the Appellant has approached this Court. The Appellant has preferred a jail petition and Ms. Priyanjali Singh learned counsel has been appointed as an Amicus Curiae on his behalf The Prosecution has successfully established that over 3 300 kgs of ‘Ganja’ that is cannabis a narcotic drug was illegally being transported in the aforesaid truck bearing Number 38 L 999. The Appellant was in the vehicle when the said vehicle was intercepted by the police. Ms. Priyanjali Singh strenuously argued that the Appellant who was not the owner of the truck but only a poor conductor 22 23 years of age at the time of the incident could not possibly have committed the offence alleged. He was not even aware of the fact that ‘Ganja’ was being carried in the truck in question. Under Section 20(b) whoever produces manufactures possesses sells purchases or even transports cannabisis punishable with imprisonment for a term which may not be less than ten years but might extend to twenty years and fine in addition to imprisonment which shall not be less than one lakh but might extend to two lakh rupees Having regard to the huge quantity of ‘Ganja’ cannabis) carried on the truck it is difficult to accept Ms Priyanjali Singh’s argument that the Appellant an employee of the truck described as a conductor but actually a helper was not even aware of the fact that ‘Ganja’ was being carried in the truck The truck was almost full of ‘Ganja’ camouflaged with only a few bags of onions at the top After going through the impugned judgment and order of the High Court the judgment and order of the Trial Court and after hearing Ms. Priyanjali Singh learned Amicus Curiae and Dr. Rakesh Pandey learned counsel appearing on behalf of the State of Chhattisgarh we do not find any cogent ground to interfere with the concurrent findings of the High Court and the Trial Court convicting the Appellant of offence under Section 20(b)(ii)(C) of the NDPS Act. The Trial Court imposed maximum punishment of rigorous imprisonment for twenty years and fine of Rs.2 lakhs for the offence punishable under Section 20(b)(ii)(C) of the NDPS Act. In default of payment of fine each of the accused were to undergo additional rigorous imprisonment for three years. However the order of sentence passed by the Trial Court did not disclose the reasons for awarding the maximum punishment to the Appellant. Although the Trial Court has recorded that the accused and their counsel were heard on the question of sentence there is no whisper of the arguments advanced. It appears that the enormity of the quantity of ‘Ganja’ seized from the lorry swayed the Trial Court to impose the maximum punishment. The Trial Court neither considered the extent of involvement of the Appellant nor considered if there were any extenuating circumstances for imposing a lesser punishment. The High Court allowed the appeal of the Appellant in part While maintaining the conviction the substantive jail sentence was reduced to 15 years from 20 and the amount of fine reduced to Rs.1 lakh from Rs.2 lakhs. While the High Court has rightly reduced the sentence the order of the High Court does not indicate the reasons why a sentence of imprisonment higher than the minimum was thought necessary. The Appellant who was only an indigent helperon the truck 22 23 years of age did not make any attempt to abscond unlike the driver Narsaiya. He did not show any suspicious behaviour The owner of the truck is absconding. The driver T. Narsaiya had made an attempt to flee. There is nothing against the Appellant except that he was in the truck containing the contraband narcotic drugs of which he was helper and some documents pertaining to the truck were found from him As pointed out by Ms. Priyanjali Singh learned Amicus Curiae the very fact that the Appellant remained in jail and has filed a jail petition shows the poor financial condition of the Appellant As an impecunious helper earning a meager salary the Appellant could not possibly have had any say with regard to the articles loaded in the truck. There is no definite evidence to establish that the Appellant knowingly committed the offence However presumption having regard to the surrounding circumstances has resulted in his conviction. Even assuming he realized that “Ganja” was being loaded he could perhaps do little but to remain a mute spectator to the commission of the offence as otherwise he would have risked his job his only means of survival if not his Ms. Priyanjali Singh submits that the Appellant is a first time offender. As argued by her the Appellant is not the owner of the vehicle. The owner is as Dr. Rakesh Pandey learned counsel for the State of Chhattisgarh has pointed out absconding. The driver of the vehicle who had been convicted has died in the Considering the facts and circumstances of the case particularly the fact that the Appellant an indigent helper on a truck only 22 23 years of age at the time of incident and a first time offender and considering that nothing was recovered from his custody except for documents pertaining to the vehicle of which he was a helper we deem it appropriate to reduce the sentence of imprisonment to the period already undergone which in any case far exceeds the minimum sentence of imprisonment of 10 years The appeal is partly allowed and the order of the High Court is modified to the extent indicated above. The Appellant shall be set free. Pending application(s) if any stand disposed of. [INDIRA BANERJEE [KRISHNA MURARI APRIL 05 2021

Summary: There was no definite evidence to establish that the appellant knowingly committed the offense. Although assuming that he realized that “ganja” was being loaded, he could perhaps do little but to remain a mute spectator to the commission of the offense, or else he would have risked his job which was his only means of survival. This judgment was passed by the Supreme Court in the case of M. Sampat vs State of Chhatisgarh [Criminal Appeal No. 378 OF 2021 (Arising out of S.L.P.(Crl.) No. 1987/2021)] consisting of a division bench comprising J. Indira Banerjee and J. Krishna Murari. The facts were that the police received a piece of secret information that certain people driving an unnumbered white Maruti Omni van and a truck, were carrying “ganja” of about 26 kgs and 3327 kgs respectively, while they were returning from Jagdalpur towards Andhra Pradesh. The three persons who were in the van were later acquitted. However, criminal proceedings were initiated against the driver of the truck and the appellant(conductor) and they were held guilty by the Special Judge who imposed rigorous imprisonment of 20 years accompanied by a fine of Rs.2 lakhs under Section 20(b)(ii)(C) of the NDPS Act. Aggrieved by this judgment of conviction they appealed before the Chhattisgarh High Court. While these proceedings were going on the driver died. The High Court partly allowed the appeal wherein it reduced their punishment from 20 years to 15 years of imprisonment and Rs.2 lakh to Rs.2 lakhs. Subsequently, aggrieved by the decision of the High Court, the appellant filed a criminal appeal before the Supreme Court through a Special Leave Petition. Ms. Priyanjali Singh was appointed as amicus curiae on behalf of the appellant. She argued that the appellant who was not the owner of the truck, but only a poor conductor of about 22/23 years could not possibly have committed the alleged offense and he was not even aware of the fact that ‘ganja’ was being carried in the truck. However, the Supreme Court did not find any cogent ground to interfere with the concurrent findings of the High Court and the trial Court convicting the appellant as a huge quantity of 3327 kgs of ‘ganja’ was being carried on the truck and it cannot be assumed that the appellant was unaware of that fact.