Piyush Sharaf vs Union Of India

Thottathil B. Radhakrishnan, CJ

This is an application seeking an order of suspension of sentence and grant of bail pending an appeal against an order of conviction and sentence handed down following trial of the appellant, charged with offence punishable under Section 21(c) of the NDPS Act.

Heard the learned Counsel for the applicant/appellant and the learned Counsel for the Union of India, the complaint before the court below having been laid by the Customs Department.

The learned Counsel for the applicant argued that the prosecution of the appellant was a mala fide exercise and a counter-blast to the complaint made by him to the Central Bureau of Investigation (CBI) alleging commission of offences punishable under the Prevention of Corruption Act, 1988 by the customs officials. He further argued that the interception of the alleged contraband and its seizure are fabricated and there is no ground at all to inculpate the appellant. It is also pointed out that no independent witness was examined to support the alleged seizure or transit of the so-called seized materials from the airport to the office of customs. There is also no reliable evidence of the complainant's case that the courier services which are shown to have intervened disowned their involvement in the alleged transaction. The learned Counsel for the applicant vehemently contended that the testimony of the CBI officials, as defense witnesses in this case, is itself sufficient enough to clearly demonstrate the innocence of the appellant and the fact that the applicant has been wrongly and falsely implicated.

The learned counsel for the complainant (Customs Department) argued that the material evidence on record has been appreciated appropriately by the court below and that the intercepted goods were transmitted from the airport to the office of the Customs and such transport was accompanied by persons who have testified in court. The seizure was effected in the office of the Customs. It is argued that the trial court having believed the evidence, the conviction and sentence stands and hence, there is no ground to hold that there is such prima facie or strong case in the appeal which entails the applicant/appellant to be granted an order of suspension of sentence.

The proceedings before the court below was initiated by the Customs Department through a complainant made under Section 21(c) of the NDPS Act, 1985. That complaint is dated and signed by the Inspector of Customs on 07.11.2014. The reading of that complaint would show that according to the department, the recovered Spasmo proxyvon tablets were seized under Section 43 of the NDPS Act as per seizure memo dated 15.07.2013 and samples were drawn in the presence of two independent witnesses and on the next day, the seized goods were produced before the Special Court. At this stage of consideration of the case, this aspect is considered only for the purpose of noticing that the complaint does not make reference to any date as to the interception of the goods and the transit of the goods from the airport to the Customs House at Strand Road, Kolkata.

Be that as it may, the findings of the court below, on the basis of the materials on record show that it is a case of unclaimed seizure and the contraband was lying in the airport area as an unclaimed property and it was seized by the Customs Officers and subsequently, the accused claimed that the seized items belonged to him as a cargo co-loader. This is how the accused was arrested and proceeded against.

The plea of the accused that CBI, ACB, Kolkata had proceeded with the complaint made by the accused and also another one by his father is a matter on record. Though the complaint of the accused and material papers of the department showed that the possibility of the involvement or otherwise of two other air cargo agents or couriers were shown, none was examined from either of those agents to sustain the complainant-department's case that those agents had disowned their link with the transit of the materials in question. The court below had before it, the copies of the charge-sheet in C.S. No. 32/13. It is the CBI's case under the Prevention of Corruption Act, against the Customs Officers. The materials on record disclose a strong prima facie case against the availability of adequate legal evidence, sufficient enough to link the accused to the seized materials. The defense version that the complaint leading to the instant case is in retaliation to the complaint of the accused which led to the CBI case against the Customs Officers have not been considered from different angles or its possibilities and acceptance as a defense in the case in hand. It is not a defense plea to be rejected outright.

For the aforesaid reasons, we are of the view that the appellant is eligible to an order of suspension of sentence and grant of bail on terms. It is therefore ordered that the sentence imposed on the appellant shall stand suspended and that the appellant shall be released on bail upon furnishing a bond of Rs. 1,00,000/- with two sureties of like amount each, to the satisfaction of convicting court and on the following conditions:

The appellant shall mark appearance in the office of the Investigating Officer between 10:00 a.m to 11:00 a.m. on any of the working days in the last week of every month commencing from December, 2019 until further orders.

The appellant shall be present or be represented at the hearing of the appeal.

CRAN 2632 of 2019 is, accordingly, disposed of.