Case BriefsHigh Courts

Punjab and Haryana High Court: The order denying parole to the petitioner (convict) based on the report of the District Magistrate was set aside by a Single Judge Bench comprising of Rakesh Kumar Jain, J.

The petitioner who was lodged in Central Jail at Amritsar was convicted and sentenced under Sections 21 and 25 of NDPS Act, 1985. His application for grant of parole was dismissed on the basis of the report of the District Magistrate holding that if the petitioner was released on parole, he would again indulge in smuggling of drugs and would be a threat to the State security and maintenance of public order. Instant petition was filed impugning the said order.

The submissions were duly considered by the High Court. The Court also perused Section 6 of Punjab Good Conduct Prisoners (Temporary Release) Act, 1962 which provides ground for rejection of application for parole on the basis of report of District Magistrate, if the State Government is satisfied that his release is likely to endanger security of the State or maintenance of public order. Referring to its various earlier decisions, the Court observed that there has to be a positive report with the police to draw a conclusion that the convict’s release on parole would endanger the security of the State or the maintenance of public order. However, in the instant case, except for the apprehension shown by the respondents that the petitioner having been convicted in a case registered under the NDPS Act, on his being released, would again indulge in the same trade, was not per se a case of his causing danger to the security of the State and maintenance of public order. Therefore, the Court held that the matter required reconsideration in accordance with law, and remitted the matter back to respondents. [Sumit Kumar v. State of Punjab,  2018 SCC OnLine P&H 413, order dated 25-04-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench comprising of Sanjay Karol and Ajay Mohan Goel, JJ., decided a public interest litigation-writ petition, wherein it held that the benefits of remission in sentence cannot be provided to convicts under Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.

A letter petition was addressed to the Court by the convicts undergoing imprisonment in various jails of the State for offences punishable under the NDPS Act. The petitioners alleged discrimination and inaction on the part of Authorities in granting remission in sentence to such convicts. The Court took suo moto cognizance, and issued notice to the State. The Director General of Prisons (Himachal Pradesh) filed a reply submitting that such convicts were not entitled to benefit of remission in view of the provisions contained in the NDPS Act itself.

In order to settle the controversy, the Court perused various provisions of the Act and relying on decision of the Supreme Court in Tara Singh v. Union of India, (2016) 11 SCC 335; held that the petitioners do not have a right to seek remission under the Code of Criminal Procedure because of Section 32-A of the NDPS Act. However, they can seek relief either under Article 72 or 161 of the Constitution, as the case my be. Section 32-A provides that notwithstanding anything in the CrPC, no sentence awarded under the NDPS Act (other than Section 27), shall be suspended or remitted or commuted.

The Court was satisfied with the response filed by the State and consequently, closed the proceedings. [State of H.P., In re, 2018 SCC OnLine HP 265, order dated 6.3.2018]

Case BriefsHigh Courts

High Court of Himachal Pradesh: While deciding a criminal appeal assailing the judgment passed by the trial court, whereby the appellant-accused was convicted for an offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985; a Single Judge Bench comprising of Sanjay Karol, Acting CJ, acquitted the appellant of the alleged offence holding that incorrect and incomplete appreciation of evidence have led to a grave miscarriage of justice.

The prosecution alleged that the accused was apprehended by the police when he started running away on seeing the police party which was traveling in their vehicle, and 200 grams of ‘charas’ was recovered from the possession of the accused. With completion of formalities on the spot, the accused was arrested. The accused was charged under Section 20 of NDPS Act and was convicted for the same by the trial court.

The High Court perused the record and was of the opinion that the reasoning adopted by the trial court was perverse and not based on correct and complete appreciation of testimonies of the witnesses, evidence and other material placed on record; causing serious prejudice to the accused, resulting into miscarriage of justice. Referring to the Apex Court decision in Lal Mandi v. State of West Bengal, (1995) 3 SCC 603, the Court opined that in an appeal against conviction, appellate court is duty bound to appreciate the evidence on record and if two views are possible on the appraisal of evidence, benefit of reasonable doubt has to be given to the accused. Also it is settled position of law that graver the punishment the more stringent the proof and the obligation upon the prosecution to prove the same and establish the charged offences.

The Court found that no independent witness was associated by the police in carrying out the search and seizure operations. The testimonies of spot witnesses (all police constables) were full of contradictions and were highly doubtful. The contradictions, improbabilities, embellishments stood ignored by the trial court and as such, findings returned on all the points being perverse and contrary to law were unsustainable in law. The prosecution was not able to prove that the contraband substance was recovered from ‘conscious possession’ of the accused. Accordingly, the appeal was allowed and the appellant was acquitted of the charged offence. [Davinder Kumar v. State of H.P., 2017 SCC OnLine HP 1644, order dated 17.11.2017]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of S.P Garg, J held that the sole testimony of the investigating officer cannot be grounds for convicting the accused under the NDPS Act in the absence of other evidence.

In this case, an intelligence officer, Directorate of Revenue Intelligence received a secret information on phone about two persons of certain descriptions who would arrive at a certain bus stop on Wazirabad road at about 9:00 p.m. carrying contraband. The said call was allegedly made at around 5:00 p.m. This information was recorded in writing and placed before senior officers and the complainant was directed to take necessary steps which resulted in the arrest of two persons matching the description given by the anonymous caller with around 6 kg of heroine in their possession. The DRI claims that during the arrest, two public persons joined the raiding team at about 8:30 p.m.

The Court found many discrepancies in the investigation and arrest. The Court questioned the absence of the two public persons during cross-examination. Moreover, the anonymous tip was recorded in a loose sheet of paper. Moreover, the DRI was unable to make a case as to where the accused persons had come from, where they were headed, who they were bringing the contraband for where they got the contraband from. In light of the above-mentioned circumstances surrounding the case, the Court allowed the appeal setting aside the sentence. [Mohammad Burhan v. Directorate of Revenue Intelligence, 2017 SCC OnLine Del 10060, decided on 24.08.2017]

Case BriefsHigh Courts

Punjab and Haryana High Court: The appellant in the present case was convicted under S. 15 of the NDPS Act, 1985 and was sentenced to undergo rigorous imprisonment for one year and thus, appealed against the sentence before the High Court.

The main contention of the petitioner was that the learned trial Court failed to appreciate this fact that recovery was affected from the appellant on a public passage but no independent witness was joined. On hearing the prayer of the appellant, Surendra Gupta, J. framed the issue in consideration that is, as to whether the testimony of official witnesses examined by the prosecution should be discarded only on the ground that it did not find independent corroboration.

The Court to answer the question arising went on to observe that it was held by the Hon’ble Supreme Court of India in Ajmer Singh v. State of Haryana, (2010) 3 SCC 746; though in cases like the case in hand, independent evidence is required, but accused cannot be acquitted merely because no independent witness produced. In light of the precedents cited, the Court held that the trial court had committed no error in law in convicting the accused and acquittal could not be granted only because no independent witness was joined.

The appellant also pleaded before the court that he was only 30 years old with no criminal antecedents and also, the sole bread earner of the family. Keeping in mind the circumstances, the Court decided to reduce the sentence from rigorous imprisonment of one year to rigorous imprisonment of 6 months. [Iqlakh Mohammad v. State of Haryana, 2017 SCC OnLine P&H 1880, decided on 3-7-2017]

Case BriefsHigh Courts

Karnataka High Court: While passing the order in a criminal petition filed under Section 439 of CrPC, praying to enlarge the petitioner on bail, a Single Judge Bench of Rathnakala, J. granted bail to the petitioner as no prima facie offence could be made out against him under the NDPS Act.

The petitioner was a Nigerian national, he was in judicial custody for offences under Sections 129B, 465, 468, 471, 474, 419, 420 of IPC along with Sections 8(c), 21(b), and 22(c) of the NDPS Act, 1985. The first accused, also a Nigerian national, was already enlarged on bail. During the raid by the responded- Intelligence Officer, the accused were found in possession of cocaine and other psychotropic substances.

The Court noted that the qualitative and quantitative reports of the seized substance were not received at that stage, and it could not be said with certainty that a prima facie case under NDPS Act was made out by the prosecution. Accordingly, the petition was allowed, and the petitioner was enlarged on bail subject to the conditions imposed. [Christian Mgbeojirikwe Uzochukwu v. State of Karnataka, Criminal Petition No. 5514/2017, dated August 2, 2017]