MUKHTYAR AHMADversusUNION OF INDIA

         HIGH COURT OF JUDICATURE AT ALLAHABAD

                 CRIMINAL APPEAL No. - 4036 of 2014

Mukhtyar Ahmad
                                                             .....Appellant(s)
                                   Versus
Union of India
                                                           .....Respondent(s)

Counsel for Appellant(s)        : Abhay Raj Singh, Brij Raj Verma
Counsel for Respondent(s)       : Krishna Agarawal, Sanjay Kumar Singh,
                                  Spl. Public Prosecutor

Court No. - 93
            HON'BLE MRS. VANI RANJAN AGRAWAL, J.

1. The instant appeal has been preferred against the Judgment and Orders
dated 20.8.2014 passed by the learned Additional Session Judge/Special
Judge (E.C. Act) Pilibhit in S.S.T. No.61 of 2012 (Union of India vs.
Mukhteyar Ahmad) under Sections 8(c)/20, 25, 27(A), (29(11) B and C),
43(B), 49 of the N.D.P.S. Act, 1985 and Section 111(D) 135(B) of the
Customs Act, 1962, Police Station Custom Circle, Pilibhit, District Pilibhit,
whereby the appellant has been convicted and sentenced as under:-

i) Under section 20(B)(ii)(c) of N.D.P.S. Act - Rigorous Imprisonment for a
period of fifteen years to appellant along with fine of Rs.2,00,000/- (Rs.two
Lakhs) and in case of default in payment of fine the appellant shall undergo
three years additional imprisonment.

(ii) Under sections 111/135 of the Customs Act - Imprisonment for a period
of five years to the appellant along with fine of Rs.20,000/- (Rs.twenty
thousand) and in case of default in payment of fine the appellant shall
undergo six months additional imprisonment.

All the sentence shall run concurrently.

2. Briefly, the facts of the complaint are that on 25.4.2012, based on a tip-
off, a preventive team was formed under the leadership of the Assistant
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Commissioner of Customs (Preventive) Department, consisting of the
complainant, Sudhir Kumar Srivastava, Inspector Satyapal Yadav, Inspector
of Customs, Anant Sagar, Inspector Diwakar Singh, Head Constable of
Customs, Ram Babu, Assistant Sub-Inspector of Customs Division, Bareilly,
Sanjay Tiwari, Constable, Sunil Kumar, Driver, and Karamat Ali, Driver of
a private vehicle, Bolero No.HR 37 B-5480. Based on the said information, a
Toyota Qualis vehicle, No. DL 3 CQ 6881, containing a large quantity of
Nepali Charas and Ganja, was reported to be contraband. This vehicle was to
leave Puranpur via Pilibhit to Bareilly on 25.4.2012 at 10-11 A.M.. Based on
this information, the Customs Department's preventive team assembled for
action at 9:30 A.M. and took witnesses Aziz Ahmed and Shadab from the
Puranpur Kotwali intersection. The department's preventive team was to
search a white Toyota Qualis vehicle, number DL3CQ-6881, parked next to
the Jaiswal Auto Garage. The witnesses waited at a shop near the garage and
waited for the vehicle. At approximately 10:00 A.M., a man arrived,
suddenly started the Toyota Qualis, and began driving towards the Assam
Road Kotwali intersection. The police chased and attempted to apprehend
the vehicle. The Toyota vehicle stopped 30-40 meters from the intersection
toward Pilibhit near Rajiv Singh's garage. The driver got out and began
showing the vehicle to a mechanic. The Customs Department's preventive
team surrounded the two vehicles and parked them near the Toyota Qualis.
Inspector Satyapal Yadav introduced himself to the driver and informed him
that Charas and Ganja were hidden in the vehicle and told him that he has
the right to have himself and his vehicle to be searched by a Gazetted Officer
or Magistrate. The complainant, Sudhir Kumar Srivastava, stated that he was
the Superintendent of Customs and that he could have the search in his
presence. When asked by the inspector for his name and address, the man
gave his name as Mukhtiyar Ahmed and said he had no objection to having
his vehicle searched. After this, each member of the preventive team of
customs officers offered to search Mukhtiar Ahmed and got himself
searched so that Mukhtiar Ahmed could be assured that the Customs
Department officials did not have any objectionable material. Thereafter, the
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search of the said Toyota Qualis vehicle was started and it was found that the
rear seat of the vehicle was much thicker and swollen than normal and
touching it confirmed the presence of some material inside and new screws
and rivets were fitted in the side panel of the rear door of the vehicle and on
finding evidence of new welding at various places, considering the
possibility of hiding the material by making a cavity in the vehicle and as
tools like pliers and screwdrivers were not available on the spot, the vehicle
was taken to the Customs Office, Pilibhit for searching the vehicle and after
completing the investigation and search work, it was found that many secret
places had been made in the vehicle and when the backrest cover of the
vehicle was opened, packets of hashish were found from it and when the rear
seat was opened, packets of charas were found set in an artificial space made
in it and when the rivets and screws of the side panel of the rear doors of the
vehicle were opened, half kg and 1 kg packets of charas were recovered
from it. Nothing was recovered from the cavity made under the rear seat's
mating, and a packet of ganja wrapped in blue plastic wrapped in newsprint
was found in the cavity between the front seats. Subsequently, every part of
the vehicle was searched, but nothing else was recovered. Upon counting
and weighing the recovered charas and ganja packets, it was found that 223
packets of charas weighing half a kilogram each, 56 packets of hashish
weighing 1 kilogram each, totaling 167.5 kilograms, and one packet of ganja
weighing 2 kilograms were recovered. During the search, vehicle
registration, insurance, and pollution control documents were recovered,
which revealed that the owner of the vehicle was Pradeep Kumar, resident of
105, Jamarupur, Lajpat Nagar, New Delhi. The aforementioned vehicle,
number DL3CQ-6881 Toyota Qualis, was taken into government custody.
For chemical testing, two samples of 25 grams each were taken from each
packet of charas and two samples of 25 grams each from each packet of
ganja. The samples were sealed and formed into two separate large bundles,
with the ganja sample sealed. The remaining half-kilogram packets of charas
were sealed in one bundle and the one-kilogram packets in the other. The
samples were sealed. The preventive squad members, employees, Mukhtiyar
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Ahmed, and the arbitrators signed and thumbprinted all the bundles. The
driver, Mukhtiyar Ahmed, was personally searched and questioned about the
charas, ganja, and the vehicle. Testing kits were ordered from Lucknow and
the charas and ganja were tested, confirming the presence of both. During
interrogation, Mukhtiyar Ahmed stated that on April 22, 2012, in the
afternoon, near the Assam Road Puranpur bypass, he encountered three
individuals travelling in the same vehicle. One of them, a former
acquaintance of his, Kedarnath, a resident of Kanchanpur Naipal, told him
that the driver had suddenly fallen ill, so he should take the vehicle to
Bareilly. Kedarnath himself then alighted at Puranpur. During the search
operation, Mukhtiyar Ahmed received several calls from Kedarnath
Kanchanpur Naipal at the Customs office, on his mobile number
9779809400606, repeatedly inquiring about the goods. The seizure report
was prepared by Inspector Satyapal Yadav, and after reading it aloud, the
accused Mukhtiyar Ahmed, the arbitrators, and the members of the
preventive team affixed their signatures and thumbprints. A copy of the
report was handed to Mukhtiyar Ahmed and he signed the receipt. Based on
the aforementioned complaint, investigation was started.

3. On 1.12.2012, charges were framed against accused Mukhtyar Ahmed
under sections 20(c), 25, 27(a), 29(1) ab of the NDPS Act and sections
111/135 of the Customs Act. The accused denied the charges and claimed
trial.

4. To prove the charges against the accused on behalf of the prosecution,
P.W.-1 Sudhir Kumar Srivastava; P.W.-2 Satyapal Yadav, P.W.-3 Ramesh
Chandra Sonkar; P.W.-4 Anant Sagar; P.W.-5 Sanjay Kumar Tiwari.

5. The learned trial court after perusing and analyzing the evidence on record
and hearing the counsel for both the parties convicted and sentenced the
accused appellant as hereinbefore mentioned in the beginning of the
judgment. Hence, this appeal.
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6. I have heard Sri Brij Raj Verma, learned counsel for the appellant; Sri
Krishna Agrawal, learned counsel for the opposite party.

7. Learned counsel for the appellant has submitted that he does not want to
argue this appeal on merit and he wants to confine his argument only on the
point of quantum of punishment.

8. Learned counsel for the appellant has submitted that the learned trial court
has not given cogent reasons in awarding the punishment to the accused
appellant higher than the minimum prescribed for the offence and has also
not considered the provisions of Section 32-B of the NDPS Act in awarding
the sentence of 15 years rigorous imprisonment and fine of Rs.2 lac. He has
further submitted that the accused appellant is in jail since the very
beginning i.e. from 26.4.2012, thus he has suffered imprisonment of about
14 years. It is also submitted that none of the conditions prescribed under
Section 32-B of the NDPS Act is attracted in the present case. So the
sentence of 15 years is unjustified. Six months further incarceration over and
above the minimum sentence of 15 years can be adjusted with the period of
additional imprisonment imposed upon the appellant in case of default in
payment of fine. It is also submitted that the accused appellant has no
criminal antecedents and he is not a previous convict. The appellant is now
aged about 37 years and he is the only bread earner of his family which is
facing financial hardship and is at the verge of starvation because of the
incarceration of the accused appellant. In support of his contention learned
counsel for the appellant has cited the ruling of the Supreme Court given in
the case of Shahejadkhan Mahebubkhan Pathan Vs. State of Gujarat
(2013) 1 SCC (Crl.) 558 in which the Supreme Court has been pleased to
reduce the period of additional imprisonment in default of payment of fine
from three years to six months.

9. On the other hand, learned AGA for the State has submitted that 167.5
kgs. contraband which is the huge quantity has been recovered from the
vehicle from which the accused appellant was arrested and thus the said
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contraband was in possession of the accused appellant. So the act of the
accused appellant was against the main stream of the society and against the
interest of the Nation. So there is no ground to reduce the sentence of the
accused appellant awarded to him by the trial court.

10. I have considered the rival submissions of learned counsel for both the
parties.

11. First of all, I would like to refer Section 32-B of the NDPS Act which
reads as under:-

      "32B. Factors to be taken into account for imposing higher than the

      minimum punishment- Where a minimum term of imprisonment or

      amount of fine is prescribed for any offence committed under this Act, the

      court may, in addition to such factors as it may deem fit, take into account

      the following factors for imposing a punishment higher than the minimum
      term of imprisonment or amount of fine, namely:-


      (a) The use or threat of use of violence or arms by the offender;


      (b) The fact that the offender holds a public office and that he has taken

      advantage of that office in committing the offence;


      (c) The fact that the minors are affected by the offence or the minors are

      used for the commission of an offence;


      (d) The fact that the offence is committed in an educational institution or

      social service facility or in the immediate vicinity of such institution or

      faculty or in other place to which school children and students resort for

      educational, sports and social activities;


      (e) The fact that the offender belongs to organised international or any

      other criminal group which is involved in the commission of the offence;

      and

      (f) the fact that the offender is involved in other illegal activities
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     facilitated by commission of the offence."


12. The above Section 32-B of the NDPS Act has been added and made
effective from 2.10.2001. The incident of this case took place on 25.4.2012
and the impugned judgment was pronounced by the trial court on 20.8.2014.
So Section 32-B of the NDPS Act is fully applicable in the case at hand as
has been held by the Apex Court in the case of Jawahar Singh Vs. State
(NCT of Delhi), (2009) 6 SCC 490.

13. The trial court has awarded the sentence of 15 years rigorous
imprisonment and fine of Rs.2 lac to the accused appellant under
Section 20(B)(ii)(c) of N.D.P.S. Act of the NDPS Act on the ground that
huge quantity of the said contraband has been recovered from the possession
of the accused appellant and sentence of five years imprisonment and fine of
Rs.20,000/- under Section 111/135 of the Customs Act. There is nothing on
record to show that the accused appellant had committed any act which may
lie under any of the clauses of Section 32-B of the NDPS Act hereinbefore
mentioned. But that does not mean that the Court cannot award the sentence
more than the minimum sentence in the absence of any of the above
conditions mentioned in clauses (a) to (f) because these conditions are in
addition to the factors as the Court may deem fit in awarding higher
punishment to the accused. In the case at hand, there is nothing on record to
show that the accused appellant had previous criminal history or he is a
previous convict and that the appellant is the sole bread earner having old
and ailing parents. Thus, regard being had to all the facts and circumstances
of the case, I think that reduction of sentence of 15 years rigorous
imprisonment awarded to the appellant to the period of imprisonment
already undergone by him and in default of payment of fine, reduction of
sentence of three years and six months imprisonment respectively to six
months' simple imprisonment would meet the ends of justice.

14. In view of the above, the appeal is partly allowed. The conviction of the
accused appellant under Section 20(B)(ii)(c) of N.D.P.S. Act and under
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                                    Section 111/135 of Customs Act are maintained but the sentence of 15 years'
                                    rigorous imprisonment awarded to the appellant is reduced to the period of
                                    imprisonment already undergone by him and fine of Rs.2 lac and
                                    Rs.20,000/- is maintained but in default of payment of fine, sentence of three
                                    years and six months imprisonment is reduced to six months simple
                                    imprisonment.

                                    15. Accused appellant Mukhtyar Ahmad is in jail. Since he has already
                                    served out the sentence of imprisonment awarded to him, so he shall be set
                                    at liberty forthwith on payment of fine of Rs.2,20,000/- before the trial court
                                    concerned.

                                    16. The case property relating to this case shall be destroyed as per rules.

                                    17. Trial court record be sent to the trial court concerned along with the copy
                                    of this judgment to do the needful.
                                    April 16, 2026
                                    Dev
                                                                                 (Mrs. Vani Ranjan Agrawal,J.)




Digitally signed by :-
DEV PRAKASH
High Court of Judicature at Allahabad