SRI LITTON DUTTA vs UNION OF INDIA

Heard Mr. B. Deka, learned counsel for the appellant and Mr. SC Keyal, learned Addl. Solicitor General of India appearing for the

respondent.

This appeal is directed against the judgment and order dated 12.12.2014 passed by learned Addl. Sessions Judge (FTC) No. 3, Kamrup(M) in

NDPS Case No. 65/2013. By the said judgment, the accused/appellant was convicted u/s 21 (c) of the NDPS Act and sentenced to

imprisonment for ten years and fine of Rs. 1 lakh with default stipulation.

On the basis of a secret information received by the Customs officials that a truck, bearing registration No. AS-25-B-1986 was carrying huge

quantity of Phensedyl linctus cough syrup bottles, a team of Customs Officers was constituted under the leadership of one BP Jaishi to pursue the

said information. The custom official located the said truck bearing No. AS-25-B-1986, as per the information, at Jalukbari, and the present

appellant was found in the truck as its driver. They brought the truck along with the appellant to the customs office. On checking, it was found that

the truck was carrying phensedyl cough linctus syrup along with some quantity of ""Ujala Supreme Liquid Blue"". There were 115 packages in the

truck, out of which, 37 packages contained 5500 bottles of phensedyl linctus cough syrup bottles. The said phensedyl linctus cough syrup bottles

containing contraband substance were seized vide Ex- 2 and the samples taken therefrom were sent for chemical examination, which gave positive

test for codeine (as codeine phosphate). The quantity of codeine in each bottle was 190.96 milligrams. The total contraband in the entire

consignment of cough syrup was 1.05 kg. contained in 5500 bottles. After obtaining the FSL report, prosecution was launched against the present

appellant.

In course of trial, six witnesses were examined by the prosecution and a number of documents were proved. On appreciation of evidence

learned trial court convicted the accused appellant u/s 20 (1) (c) of the NDPS Act and awarded sentence as indicated above.

Aggrieved by the said judgment of conviction and sentence, the appellant preferred the instant appeal.

Learned counsel for the appellant, Mr. B. Deka has not contested the merit of the case. The only contention raised by the learned counsel for

the appellant is that the quantity of contraband found in possession of the accused/appellant was not of commercial quantity and therefore,

conviction ought not to have been recorded u/s 21 (c), rather it should have been u/s 21 (b) of the NDPS Act. In support of his submission,

learned counsel for the appellant has taken me through the evidence of PW 1, being the seizing officer as well as the maker of the Ex-2, inventory

report. As per the Ex- 2, 5500 phensedyl linctus cough syrup bottles were shown to have been seized by the PW 1. But during cross-examination

PW 1 clearly admitted that he personally did not count the number of bottles seized.

PW 4, another witness to Ex- 2 stated, that the goods were downloaded from the truck and he was shown the phensedyl linctus cough syrup

bottles. He further stated, that there were about 5000 bottles of phensedyl linctus cough syrup bottles. PW 5, who received the secret information

stated, that in Ex- 1, the information reduced to writing, the number of bottles were not mentioned. The information was only to the effect that huge

quantity of contraband articles were being transported.

The contention of the learned counsel for the appellant is that the phensedyl linctus cough syrup bottles seized by the Customs officials were not

more than 5000 bottles and there was no basis of the entry recorded in the Ex-2 to the effect that 5500 bottles were seized. Learned counsel

basically relying on the testimony of PW 1 and PW 4, being the seizing officer and witness to the seizure list, submits that the quantity of phensedyl

linctus cough syrup bottles were not more than 5000 and the amount of 5500 was put on surmise and conjecture only to bring the amount of

contraband within the commercial quantity. It is also submitted by the learned counsel for the appellant, that if the evidence of PW 1, PW 4 and

PW 5, being the seizing officer, and the witness to Ex- 2 is taken into account, it cannot be said for certain that 5500 bottles of phensedyl linctus

cough syrup bottles were seized inasmuch as, no one counted the bottles of cough syrup.

Learned Addl. Solicitor General representing the prosecution contended that since in the Ext- 2, inventory report, the quantity of bottles had

been mentioned as 5500, that cannot be disbelieved, because of the discrepancy in the evidence of PW 1, PW 4 and PW 5, who had deposed

from their memory. Ext- 2, the inventory report was prepared by the PW 1, S.K. Das, who happened to be a Senior Officer of Customs. He had

clearly stated that he did not count the number of bottles. If the evidence of PW 4 is believed, then it has to be accepted that there were 5000

bottles. In view of the above evidence, the learned counsel for the appellant has rightly contended that in a criminal proceeding when two views are

possible from the materials on record, the one which goes in favour of the accused has to be accepted and not the one which goes in favour of the

prosecution. Going by this established principle, it is difficult to hold that prosecution has been able to discharge its burden to prove beyond

reasonable doubt that 5500 bottles of phensedyl linctus cough syrup were seized from the possession of the accused.

The evidence on record fails to prove beyond reasonable doubt that 5500 bottles of phensedyl linctus cough syrup bottles were seized, rather,

and the evidence of PW 4 indicated that there were about 5000 bottles only. If the quantity of phensedyl linctus cough syrup bottles are taken as

5000, as deposed by PW 4, then the contraband in possession of the appellant would come to 9.45 kg, which is below the commercial and above

the small quantity. The prosecution having failed to prove beyond reasonable doubt the quantity of contraband was of commercial quantity, in my

considered view, the accused could not have been convicted u/s 21 (c), rather, the conviction ought to have been u/s 21 (b) of the NDPS Act for

possessing contraband less than commercial and more than small quantity.

In view of the above facts and circumstances, I am of the view that the conviction of the accused/appellant deserves to be modified.

Accordingly the accused/appellant is convicted u/s 21 (b) of the NDPS Act.

The conviction of the appellant having been modified u/s 21 (b) of the NDPS Act, the sentence also required to be modified to commensurate

with the offence committed by the appellant. S. 21 (b) of the NDPS Act provides sentence of imprisonment for a term which may extend to 10

years without prescribing any lower limits. Thus, having regard to the sentence prescribed by the statute, the gravity of the offence and the facts

and circumstances of the case, I am of the view that sentence of imprisonment for a period of six years will meet the ends of justice. Accordingly,

the sentence is modified and the appellant is sentenced to rigorous imprisonment for six years. So far quantum of fine is concerned, no interference

is called for. Fine imposed by the learned trial court shall remain and in default of payment of fine, the appellant shall undergo simple imprisonment

as awarded by the learned trial court.

With the above modification in conviction and sentence, the appeal is partly allowed.

Send back the LCR.