9. Punishment for contravention of Sections 6, 7
and 8.--Whoever contravenes the provisions of Sections 6, 7 & 8 shall be
punishable with--
(a) imprisonment which may extend to two
years, or with fine, or with both, if the quantity of the narcotic drug,
psychotropic substance or controlled substance is one hundred grams or less;
(b) imprisonment which may extend to seven
years and shall also be liable to fine, if the quantity of the narcotic drug,
psychotropic substance or controlled substance exceeds one hundred grams but
does not exceed one kilo-grams; and
(c) death or imprisonment for life or
imprisonment for a term which may extend to fourteen years and shall also be
liable to fine which may be
upto one million
rupees, if the
quantity of narcotic drugs,
psychotropic substance or controlled substance exceeds the limits specified in
clause (b):
Provided that if the quantity exceeds ten kilograms the
punishment shall not be less than imprisonment for life.
COMMENTARY
Charge against accused
lady was not proved beyond reasonable doubt. Supreme Court set aside the
conviction and sentence. PLJ 2006 SC 1065 = 2006 SCMR 1343.
Presence of witness at
the place was natural. PWs were present at the place of recovery of
"Charas" from vehicle under control being driven by the petitioner,
were the police employees. They were the competent witnesses like any other
independent witness and their evidence cannot be discarded merely for the
reason that they were the police employees. Petitioners had not produced any
evidence in support of their defence version. Counsel for petitioners had
failed to point out any malafide of the police employees qua the petitioners.
Defence plea of the petitioners that they had no knowledge about the charas
concealed beneath the front and rear seats of the car has no force. They could
not explain their travelling in the car nor their destination. Held: Use of car
in the commission of offence was not denied but where they were going was
unexplained and it remained under mystry. Prosecution had been successful to
establish the guilt of the petitioners to the hilt by proceeding the evidence.
Counsel for the petitioners had not been able to point out any error or
illegality, misreading or non-reading of evidence in the impugned judgment of
High Court. PLJ 2008 SC 346.
Petitioner found in
possession of bag containing narcotics. Bag was opened in his pressure and
heroin was recovered from inside bag leave to appeal challenging conviction and
sentence dismissed. PLJ 2006 SC 194.
By allowing the appeal
partly, Supreme Court reduced the sentence of the accused persons. 2006 SCMR
1378 = PLJ 2006 SC 1061.
Plea for suspension of
sentence of petitioners during pendency of appeal, rejected by High Court.
Legality. Recovery of small amount of Narcotics from petitioners. Two
conflicting reports relating to material in-question. Petitioners were in jail
since 21.3.2001. No likelihood of petitioner's appeal being heard in near
future. Petitioners have made out a case for suspension of their sentences.
Petitioners sentences of imprisonment were suspended and they were allowed to
be released on bail in the sum of specific amount. PLJ 2008 SC 322.
Huge quantity of 30 kg
of charas recovered at the pointation of accused from inside the truck
belonging to him. Report of Chemical examiner also positive. Leave refused.
2006 SCMR 265 = PLJ 2006 SC 1294.
Accused failed to prove
fabricated recoveries or his false implication. Appeal refused. PLJ 2006 SC
997.
Accused was caught
red-handed by police party while dealing in the business of heroin--No mala
fide or ill-will was established against the complainant/S.H.O. or police party
to falsely implicate him in the case--Delayed receipt of FSL report would make
no difference so as to interfere in the impugned judgment and to acquit the
accused from the charge--Offence was of henious nature which destroys the whole
society. PLJ 2008 Cr.C. (
Courts are supposed to
dispose of the matter with dynamic approach, instead of acquitting the drug
paddlers on technicalities. Leave to appeal refused to accused. PLD 2006 SC 61;
PLJ 2006 SC 396.
Accused being a
foreigner was not a consideration for determining the quantum of sentence as
the penal law of the country had to be applied with same rigor to every one
subjected to it, regardless of his nationality. Sentence had to be
proportionate to the heroin powder in the form in which it was marketable,
regardless of its composition. Accused had already been dealt with leniently by
the trial Court. Leave to appeal was declined. 2006 SCMR 1539.
Re-appraisal of
evidence. Recovery of charas weighing 30 Kg's from the dashboard of car. Plea
of the accused that he was sitting in car as servant of the owner, who was
himself driving car, and that he was involved as scapegoat, was of considerable
importance and could be preferred to prosecution version provided the same was
supported by evidence. Petition for leave to appeal was dismissed. 2006 SCMR
1826.
It was not clear from
evidence that whether he was a passenger in the vehicle or not. Prosecution
evidence was silent regarding his vicarious liability or intention about the
concealment of narcotic substances. Similarly he was not having the control of
car from where such narcotic substances was concealed. There was nothing on
record that he was bearing common intention with his co-accused qua the custody
of the narcotics or offered any assistance in such respect. Prosecution
evidence could not prove the alleged charge against appellant and thus he was
given the benefit of doubt and acquitted of the charge. PLJ 2008 Cr.C. (
Vehicle was being run by
accused as taxi was neither contradicted nor any evidence was brought on record
to suggest that co-accused person being his associates in the crime, had the
knowledge that heroin was kept in secret cavities of the vehicle. On the basis
of benefit of doubt co-accused persons were acquitted from the charge. PLJ 2008
SC 373.
Appreciation of
evidence. Release of accused on probation. Both accused ladies were juvenile
and they were below 18 years of age. There was not evidence that accused were
falsely implicated in the case. Maintaining conviction and sentence, High Court
directed that they be released on probation for a period of 5 years. 2006
PCr.LJ 1562.
Reappraisal of evidence.
Allegation of recovery of 300 grams opium. Arrest of accused in violation of S.
21, CNSA, 1997. Failure of Court to put specific question to accused in his
statement u/S. 342, Cr.P.C. regarding charge levelled against him was a gross
illegality which tantamounted to condemn accused unheard. Material
discrepancies and contradictions existed in prosecution evidence. Sentence set
aside and accused was acquitted. 2006 PCr.LJ 1664.
Accused was sentenced to
life imprisonment and fine of Rs. 10,00,000/- but in the judgment, there was no
mention of period of imprisonment which accused was to suffer in case of
default of payment of fine. High Court maintained conviction, but reduced
sentence to period already undergone by the accused, but no order was passed in
respect of fine or the period of imprisonment in lieu thereof. Application for
remission of fine was withdrawn. Grievance petition of accused was not brought
to the notice of the Court at the relevant time. Omission appeared to be of
clerical nature. High Court treating the application of accused as u/S. 561-A,
Cr.P.C. reduced the fine from
Rs. 10,00,000/- to Rs.
25,000/- and in default of payment of fine, accused would undergo two months,
S.I. 2006 PCr.LJ 1898.
Conviction and sentence
recorded against accused by trial Court. Appeal was dismissed by High Court.
Challenge to. Appreciation of evidence. A huge quantity of narcotic material had
been recovered from possession on pointation of accused. At the time of
occurrence and arrest, members of the patrolling party were associated in
recovery proceedings. Though I.O. and other PWs were employees of A.N.F., yet
they had no animosity or rancor against accused. Prosecution successfully
proved his guilt to the hilt by placing ocular account, recovery of narcotic
material & chemical examiner's report. Conviction and sentence maintained.
PLJ 2008 SC 754.
Appreciation of
evidence. Case property consisted of two pieces. Admittedly only one sample was
taken and it was not clear as to from which of the two pieces the sample of
narcotics was taken for submission to the Chemical Examiner. Accused could not
be convicted for the recovery of second piece out of which no sample was taken.
Conviction of accused was upheld but his sentence was reduced to the
imprisonment already undergone. 2006 MLD 1555.
Reduction in sentence.
Sentences of each accused were reduced in view of the principle laid down in
2004 PCr.LJ 1424. Sentences of death and life imprisonment u/S. 9(c) were
reduced to 8 years' R.I. Sentences were directed to run concurrently with the
benefit of S. 382-B, Cr.P.C. 2006 MLD 1596.
Substitution of offence.
Recovery witness had deposed that only 200 grams "charas" was
recovered from the accused whereas other recovery witness was given up by the
prosecution without any reason which had caste doubt on the prosecution case.
Offence thus fell u/S. 9(b) of the CNSA, 1997, which was substituted for his
offence u/S. 9(c) of the said Act and his sentence was reduced to 5 years' R.I.
with fine of Rs. 5000/-. 2006 MLD 1598.
Accused being owner and
driver of the vehicle in which 2« Kg heroin was recovered. Conviction was
unexceptionable in the circumstances. However, as raiding party had sent very
small quantity of heroin to the chemical examiner, instead of sending similar
quantity from each 8 packets recovered. In such circumstances presumption would
be that report would be read only to the extent of one packet of the
approximate quantity of less than 1 kg, so the conviction u/S. 9(c) was bad
under the law. Conviction was converted into that of S. 9(b) of the Act, 1997
and sentence was reduced from 10 year to the period already undergone by
accused. PLJ 2008 SC 373.
Sentence u/S. 9(c) &
15. Error in charge sheet as to place of recovery. Object of framing of charge
was primarily to enable accused to know the exact nature of offence allegedly
committed by him at a particular date and time. Accused were not misled in
their defence by error in framing the charge as to place of recovery. 2006 MLD
1546.
Report of chemical
examiner. Evidentiary value. Non-observance of R. 6 of CNSA (Government
Analysts) Rules, 2001. Effect. Report in the present case was not prepared in accordance
with S. 36(1), CNSA, 1997 on prescribed form. If law provided things to be done
in a particular manner, those were to be done in that manner as any change
thereto could cause doubt in its veracity. High Court directed the trial Court
to summon Chemical Examiner as Court witness and afford opportunity to
cross-examine him. 2006 YLR 2826.
Distribution/supply of
copies of documents to the accused. Vitiate the proceedings. Serious
illegality. Procedural requirement. Fundamental principle. Prima facie. Trial
Court acted in bit haste in proceeding to frame the charge and recording
confessional statements of the accused without requirement of S. 265 of
Cr.P.C.. Case remanded. PLJ 2008 Cr.C. (
Non-production of
recovered substance in the Court during the trial was fatal to the case of
prosecution sentences reduced. 2006 YLR 2668.
Raiding party despite
having prior information did not bother to obtain search warrant from a
competent Court and conducted raid at the house of appellant without showing
any justification. Though Magistrate was in association with the raiding party
yet his presence was not sufficient to bypass mandatory provision of law and
the Constitution. No evidence on record that house was in exclusive possession
of accused. The bag containing charas was found lying in the courtyard of house
and his wife/co-accused who had been arrested at the spot, was subsequently
acquitted from the charge. Conviction & sentence set aside. PLJ 2008 SC
414.
Nothing was recovered
from the person of the accused but from the "Dera" not in his
exclusive possession. This mere presence at the premises of recovery of charas
did not at all demonstrate his culpability. 2006 YLR 2642.
Non-production of
recovery witness. When a private Mushir cited in the challan is given up in the
Trial Court without assigning any reason, their adverse inference may be drawn
in favour of the accused. Accused were acquitted. 2006 MLD 113.
Abrupt change in law
without making any proper amendment had already a turmoil resulting is
incarceration of many Hakeems and Apothecaries confronting maximum sentence,
which required re-consideration. Extenuating circumstances were available.
Sentence of death reduced to imprisonment for life with benefit of S. 382-B,
Cr.P.C. 2006 YLR 800.
No narcotic substance
was recovered from the accused at the time of his arrest. Recovery on the basis
of alleged disclosure by arrested co-accused. No recovery during investigation.
Post-arrest bail was granted to the accused. Case against accused based on
inadmissible evidence. No probability existed for conviction of accused.
Impugned order was set aside and application u/S. 265-K accepted by the High
Court. 2006 YLR 1834.
Contraband had been sent
to Forensic Science Laboratory thirteen days after recovery of the same. No
plausible explanation. Material contradictions in evidence. Judgment of trial
Court set aside and accused acquitted. 2005 YLR 2448; 2005 PCr.LJ 2030.
Destruction of remaining
quantity of narcotics. Alleged recovery of 20 K.G. charas. 20 grams sent to
Chemical Examiner. Court issued notice to accused but remained unserved.
Conversely the date for destruction was shortened. No right of hearing given to
accused. Conviction and sentence u/S. 9 (c) of the CNSA, 1997 was set aside and
he was convicted u/S. 9(a) of the Act. 2005 YLR 16.
Delay of 6 days in
sending samples to laboratory. Delay of 22 days in checking samples and delay
of 15 days in receiving back the report of Forensic Science Laboratory. No
explanation. Conviction set aside accused was acquitted giving him benefit of
doubt. 2005 PCr.LJ 2034; PLD 2005 Pesh. 162.
Alleged making of
judicial confession by accused before prosecution witness, having not been put
to accused during his examination u/S. 342 Cr.P.C., said piece of evidence
could not be considered for recording his conviction. Report of Chemical
Examiner not on record. No recovery witness was produced. Conviction and
sentence were set aside. 2005 MLD 145.
Sample taken from 2
slabs of charas consisting of 17 Sub-slabs. Omission to obtain samples from
each sub-slab caused serious doubt on prosecution case. Samples of recovered
contraband were sent to F.S. Laboratory after 72 hours of recovery. Delay
unexplained. Benefit of doubt. Conviction set aside. PLD 2005 Pesh. 197.
Driver's responsibility
regarding the narcotics being carried in his vehicle. Driver cannot be absolved
from the responsibility if the contraband items are being transported openly on
the roof of the vehicle driven by him. No acquittal of drug paddlers on
technicalities. PLD 2006 SC 61.
Accused a physical
disabled person and beggar. Accused being himself a victim required sympathetic
treatment. Sentence reduced from 3 years to one year and fine was also reduced
to Rs. 1000/-. PLD 2006 Kar. 552.
Police officials are as
good witnesses as other witnesses and their evidence on this score alone could
not be discarded. 2004 SCMR 1361.
Double jeopardy. On the
same date, same place and almost at the same time, heroin and charas were
recovered from the accused, both the items fell within the definition of
narcotics. Registration of another case was unjustified. Accused had already
been convicted, he could not be convicted twice for the same offence in the
light of S. 403 Cr.P.C. Accused was acquitted of the Charge. 2003 PCr.LJ 405.
Sample from one packet
out of 32 packets was sent to Chemical Examiner for analysis. Culpability of
accused could only be treated with regard to only one packet. Conviction
altered from 9(c) to 9(b) of the CNSA, 1997. PLD 2003 Pesh. 130; PLD 2003 Kar.
230.
Recovery of charas by
Excise Inspector without obtaining search warrant. Conviction set aside by High
Court. Leave to appeal was declined. 2003 SCMR 881.
Absence of Mashirnama of
seizure of capsules containing heroin was a serious flaw in prosecution case.
Accused was acquitted. 2002 PCr.LJ. 1670.
Double jeopardy
challenged. Accused after having served out their sentences awarded to them by
the special Court u/S. 156(1)(8) of the Customs Act, 1969, had been summoned by
the special Court constituted under the CNSA, 1997 for trial u/S. 9 of the Act.
Special Court Customs was not at all competent to try the accused. Offence
connected with the narcotics could be tried only under the provisions of CNSA,
1997 in the Court established thereunder to the exclusion of the Court
established under any other law. Conviction and sentence awarded by the Special
Judge Customs was quashed. 2003 YLR 1507.
Quashing of proceedings
u/S. 561-A. Spy information was available in advance to the police in the case
but they did not follow the provisions of S. 21 of CNSA, 1997. Proceedings
pending against the accused before the Trial Court were quashed. 2002 PCr.LJ.
1086.
Power to refuse or allow
bail was not to be exercised by Court u/S. 497 Cr.P.C. but u/S. 51 of the CNSA,
1997. 2002 PCr.L.J. 1680.
Constitutional petition.
Quashing of proceedings. Two trials for the same offence. Petitioner was
charged for smuggling of narcotics and was tried by Special Judge, Customs.
Second trial on the same occurrence before the Special Judge under the CNSA,
1997 was barred in view of Art. 13 of the Constitution as also u/S. 26 of
General Clauses Act, 1897 and S. 403, Cr.P.C. Proceedings were quashed. 2001
PCr.L.J 248.
Sentence. CNSA, 1997
does not envisage any distinction in the matter of sentence between
psychotropic substances of different types. 2001 MLD 1983.
Case property sent to
chemical examiner after an unexplained inordinate delay of 6 months. No
independent witnesses. case property neither produced in Court˙nor shown to the
accused while recording his statement u/S. 342 Cr.P.C. Accused was acquitted on
benefit of doubt. 2001 YLR 3078.
Roznamcha containing the
entry of leaving the office by the complainant and other staff on receipt of
spy information and proceeding towards house of the accused, was not produced
before the trial Court. 225 grams out of 435 grams of narcotics was sent to the
expert for analysis. Accused was acquitted on benefit of doubt. 2001 PCr.LJ
1736; 2001 YLR 1123.
Resummoning prosecution
witnesses for cross-examination. Non-availability of the counsel of the accused
when witnesses were examined. High Court's direction to conclude the trial on
the specified date. Validity. Cross-examination was the most valuable right of
an accused and was the only vehicle through which the truth or falsity of the
witnesses could be determined. If prosecution witness was not cross-examined
then the accused's case could be seriously pre-judiced. High Court directed the
trial Court to re-summon the prosecution witnesses for cross-examination. PLD
2001 Lah. 463.
Recovery memo was
attested by Police Constable and no person from public was joined.
Compainant/A.S.I. having no jurisdiction to detain, search and arrest accused,
alleged recovery would have to be viewed with caution and same had no legal
force. Sentence recorded against-accused being illegal was set-aside. Criminal
case could not be decided on special oath. 1998 PCr.LJ 2008.
"Opium baked"
being covered by the "controlled substances" was cognizable by the special
Court constituted under the CNSA, 1997. Since the accused himself had not
disputed the recovery of illicit articles, prosecution was under no obligation
to prove that each bag contained opium. Conviction and sentence upheld. 1998
PCr.L.J. 2086.
Parcels of the charas
recovered from the accused did not appear to have been kept in the malkhana in
safe custody. Chemical Examiner's report was unreliable on account of
unexplained delay in sending the material to him. Accused was acquitted on
benefit of doubt. 1998 PCr.LJ 1462.
Conviction and sentence
under S. 9(c) of Control of Narcotic
Substances Act, 1997 recorded
and awarded to petitioner. High Court maintained conviction and sentence
awarded to petitioner. Validity. Plea of non-issuing of search warrant by
Court. Effect. Provision of S. 20 of Control of Narcotic Substances Act 1997
was couched in such manner that the same does not place mandatory obligation
upon Investigation Agency to obtain search warrant from Special Judge before
conducting raid. Word "may" as used in S. 20, Control of Narcotic
Substances Act, 1997 would indicate that law has not prescribed consequences of
conducted search without obtaining warrants from
No other case stands
registered against petitioner. He is young man of 18 years of age. Offence
alleged against him does not fall within prohibitory clause of Section 497
Cr.P.C. and on Court query, police official appearing in Court admits that petitioner
appears to be an addict of churs. There is no evidence of sale. PLJ 2001 Cr.C.
(
Prosecution has failed
to get examined material mashir who has written F.I.R., mashirnama and
statements of witnesses and no reasons have been assigned by prosecution as to
why he has been given up. Only reason is being assigned that co-mashir has been
examined, therefore, it was not necessary on the part of prosecution to examine
him. Point is that such material mashir who has done every thing with regard to
investigation and has been given up by prosecution and no reasons have been
assigned by prosecution except that co-mashir has already been examined is not
satisfactory reply being furnished by prosecution. Court is constrained to hold
that had he been examined by prosecution, he would have certainly not supported
prosecution case. Prosecution has miserably failed to prove its case against
appellant beyond reasonable doubt. PLJ 2001 Cr.C. (
Entire case of
prosecution hinges on entry by virtue of which police party is said to have
left police station and gone to plat-form but same entry has not been produced
by prosecution before trial Court which is a genuine document and
non-production of said document vitiates entire trial. PLJ 2001 Cr.C. (
Property not sealed on
spot, non-production of entry. Effect. Delay in sending substance to Expert
vitiated trial and benefit of doubt has been accorded by High Court to accused.
Even prosecution witnesses have not deposed before trial Court that they
produced entry before trial Court. PLJ 2001 Cr.C. (
Recovery of 1000 gram
charas. Sentence. Challenge to. Only fact needed to be proved in this case was
that appellant was having with him charas, for which he has been convicted. For
its proof, prosecution examined only two witnesses who are Excise Officials who
said that they left for patrol after making an entry about it in `roznamcha',
but no such entry was produced before Court. charas was, allegedly, secured from
appellant, at day time, at a public place, but there is no independent witness.
These circumstances indicate a possibility of case having been prepared at
Excise Office. That could have been done very conveniently. Further, statements
of two witnesses differ in description of some facts e.g. weightment of charas
etc. Appellant was entitled to benefit of doubt. PLJ 2001 Cr.C. (
Prosecution has not been
able to prove its case against appellant. Prosecution evidence falls short of
legal proof required in a case of capital charge to establish guilt of
appellant. There is absolutely nothing on file to indicate that appellant had a
hand in smuggling/transportation of heroin and it was in his knowledge that bag
recovered from his car, contained heroin powder. Possibility of appellant
having offered a lift to co-appellant without knowing about real nature of
stuff contained in bag, cannot be excluded in the circumstances of case. Mere
fact appellant was driving car in question from which contraband had been
recovered lying under feet of co-appellant by itself, is not sufficient to
connect him with guilt, as rightly urged. Vehicle in question hired by
appellant from someone has not been confiscated to the State and same has been
discharged of its liabilities. It needs no reiteration that for giving benefit
of doubt to an accused, it is not necessary that there should be many
circumstances creating doubt. If there is a circumstance which creates a
reasonable doubt in prudent mind about the guilt of the accused then accused
will be entitled to the benefit of doubt not as a matter of grace and
concession but as a matter of right. Appeal accepted upto the extent of
appellant but there is sufficient material on the file to connect co-appellant
with guilt. PLJ 2001 Cr.C. (
Transportation of huge
quantity of narcotics. Nature and appreciation of evidence. Approach of Court
should be dynamic and Court should over look technicalities in larger interest
of country. PLJ 2002 Cr.C. (
Submission is not
tenable. Non-production of case property at trial or destruction certificate,
do not appear to have prejudiced cause of accused-appellant in any manner. At
the most it can be considered an irregularity , which is curable under law.
Recovery has been sufficiently proved and no suggestion has been made to
Investigating Officer regarding destruction certificate. Trial Court has
proceeded on wrong premises to hold that co-accused, being cleaner of truck, is
not responsible because `the things in truck are always under constructive
possession of driver and not of cleaner. Both accused have acted in unison and
both of them seem to have a hand in smuggling of illicit narcotics. Mere fact,
co-accused is cleaner of truck, by itself, is not sufficient to absolve him of
liability specially when his presence at relevant time is admitted and he has
produced nothing to prove his innocence. PLJ 2002 Cr.C. (
Appellant was driving
car and was aware of presence of charas and opium. Hence conviction u/S. 9(c)
CNSO 1995 is maintained. No evidence that he was owner of charas recovered from
car. He being driver at the most has played role of carrier his sentence
reduced on this ground. Ladies were not aware of charas and opium, which was
hidden in car as they took lift and were travelling in car. Prosecution has
failed to prove case against them by producing any witness. Their sentences set
aside and murder reference against driver replied in negative. Death sentence
of driver appellant converted into imprisonment for life. PLJ 2002 Cr.C. (
Statements of witnesses
were consistent on material points and it could not be said by
appellant/accused that apprehension had not been made from spot and recovery
had not been effected from him. Court had no reason for dis-believing
statements of witnesses who were consistent on material points. No enmity or
grudge has been shown for false implication of appellant by Officers of ANF.
Prosecution has established recovery of narcotic case against appellant so
conviction is maintained u/S. 9 (c) of Control of Narcotic Substances Ordinance
of 1996. However, as "quantity of recovered charas is less than 1. K.G.
hence, sentence of life imprisonment is harsh. Appellant is first offender and
recovery is not more than 1. K.G. sentence of 7 years will meet ends of
justice. Hence, sentence of life imprisonment is reduced to 7 years R.I. and
fine of Rs. One Million is also reduced to Rs. 2,00,000/-. PLJ 2002 Cr.C. (
Recovery of narcotic
substances from accused persons. Specific pleas raised by two accused were not
proved while prosecution successfully proved recovery of narcotic substances
from their possession. Sentence of imprisonment awarded to them by Trial Court
was maintained. Plea of co-accused indicated that his version might be true,
therefore, his conviction and sentence was set aside by giving him benefit of
doubt. PLJ 2002 Cr.C. (
Non-issuance of notice
for appearance to Anti-Narcotic Force Deptt. (ANF) and appearance of state
counsel on behalf of Advocate-General and issuance of concessional statement by
her before High Court for reduction of sentence in favour of accused. Legality.
State counsel had no authority to make concessional statement of sentence
particularly when no notice was issued to Anti-Narcotic Force Deptt. (ANF).
Even if it is presumed that state counsel had authority to appear on behalf of
ANF but still was not empowered under law to give concessional statement for reduction
of sentence of respondent/accused contrary to provisions of Section 9(c) CNS
Act, 1997. PLJ 2002 SC 579.
Respondent found guilty
of commission of offence and was awarded life imprisonment with fine. High
Court reduced sentence that to 4« years R.I. with the observation that since
quantity of drug is less then ten kilogram, therefore, sentence awarded under
Section 9(c) of the CNS Act is uncalled for. 2 K.G. of Charas was recovered
from possession of respondent/accused, he was not liable to the sentence to the
extent of only 4« years imprisonment. Discretion has not been exercised
judicially. PLJ 2002 SC 579.
Recovery of narcotic
substances from the possession of appellants. Conviction and sentence awarded
to appellants as confirmed by High Court assailed. Leave to appeal was granted
to examine whether offence under S. 156(1)(8) of Customs Act, 1969 and offences
under S. 9(a)(b)(c) of Control of Narcotic Substances Act, 1997 were same
offences and if an accused was convicted/sentenced under any of the provisions
out of both of those laws, the trial/conviction/sentence of accused under other
law would be bar in view of provisions of Art. 13(a) of the Constitution and S.
403 Cr.P.C. PLJ 2002 SC 332.
Recovery of 25 grams of
heroin and 560 grams charas. Conviction and sentence. Appeal against. Raid was
conducted in day light, therefore, it could be seen that appellant was holding
polythene bag at the time of throwing the same on ground. Statements of both
recovery witnesses (police officials) were consistent to each other and their
statements force to believe that there was a truth in prosecution version.
Report of Chemical Examiner provided blood to prosecution story as being a
corroborative piece of evidence. Whereas defence version is an after thought as
appellant failed to convince on question of enmity. He failed to provide
details of his enmity with police, therefore, it was not sufficient to say that
he has been involved just to please high-ups in heirarchy of Police. Defence
version was devoid of any force, therefore, it was rightly rejected by learned
trial Court. Point for examination is as to whether there is any circumstance
on record to take a lenient view in case of sentence. It appears from report of
Superintendent Jail, placed on record that appellant has already undergone
sufficient period of his sentence and expected date of his release is 3.5.2005
if amount of fine is paid. Judgment of trial Court maintained. Taking lenient
view sentence is reduced to already undergone. PLJ 2003 Cr.C. (
Evidence of material
witnesses had been re-appraised. No material contradiction either in
prosecution version as given in F.I.R. or deposition made by those witnesses
was found or pointed out. Huge quantity of narcotic substance was recovered from
the car driven by one of the appellant while the other appellant was sitting on
front seat. Prosecution had, thus, proved its case against appellants. PLJ 2003
Cr.C. (
Recovery of opium was
attributed to appellant which was recovered at her pointation from her
residential room. Appellant is wife of a convict from whose possession large
quantity of narcotic substances were recovered. Evidence on record showed that
appellant and her husband were living in the same house, thus, she did not
reside in the house alone and case property allegedly recovered at the instance
of appellant belonged to her husband and she was not responsible for the same.
Prosecution had not alleged that appellant was found selling or transporting
opium from house of her husband. Case against appellant was thus, not free from
doubt. Conviction and sentence awarded to appellant was set aside and she was
ordered to be released forthwith. PLJ 2003 Cr.C. (
Recovery of 3 Kg.
charas. Witnesses faced test of cross-examination but no material discrepancy
could come to record. Report of Chemical Examiner being positive in nature
defence advanced by appellant appeared to be afterthought and documents brought
by him on record could not provide any strength to defence version. S.H.O. not
examined because he had gone to
Evidence of prosecution
is very convincing and there was no justification to involve appellant in a
case of recovery of heavy quantity of narcotics; and that defence version
advanced by appellant is totally after thought and worth no reliance appellant
is facing agony of trial as he is behind bars, therefore, conviction passed by
learned trial Court is maintained, but sentence of ten years awarded by learned
trial Court is reduced to seven years and fine of Rs. 25,000/- is also reduced
to Rs. 10,000/. PLJ 2003 Cr.C. (
Where there was
irregularity in not registering case by a competent officer, even then relief
can be declined to petitioner following provisions of S. 537 Cr.P.C. according
to which if there was such irregularity which had not caused prejudice or
injustice, same was curable. PLJ 2003 SC 458.
Prayer for superdari of
vehicle used in transporting of narcotics. Court can grant final relief,
pending proceedings before it, subject to prima facie, fulfilling conditions by
petitioner under law for getting relief finally from Court. However there being
no material on record that petitioner had no knowledge about narcotics, being
transported in his vehicle, said principle was not attracted. PLJ 2003 SC 458.
Prosecution has
succeeded in establishing connection between appellants and contraband charas
and opium. No doubt that huge quantity of narcotic is alleged to have been
recovered from appellants because of deficiency and lapses in the investigation
and other circumstances, Court would look into that quantity of narcotic
recovered which stands proved to be narcotic. PLJ 2004 Cr.C. (
Appellants had denied
recovery of the same from their possession. Appellants a male and female were
travelling in a vehicle when "Gathri" lying in their feet was
recovered and on opening the same huge quantity of narcotic substances was
found therein and taken into possession by Police. Appellants in criminal trial
had taken specific plea that "Gathri" in question did not belong to
them, therefore, onus shifted to them to prove such plea but they failed to
discharge such onus. Appellants being the only inmates of vehicle in question,
which was being driven by one of them could not deny recovery of Narcotic
substances in the same. Such huge quantity of narcotic substances could not be
believe to have been planted by police when no motive for the same was
attributed to police and no evidence was produced in support of such plea.
Recovery of Narcotic Substances from possession of appellants was thus, proved.
PLJ 2004 Cr.C. (
No discrepancy or flaw
in prosecution case has been pointed out. Conviction and sentence imprisonment
being supported by evidence on record could not be interfered with in appeal.
Conviction and sentence awarded to appellants were maintained. PLJ 2004 Cr.C. (
Recovery of charas in
two samples and opium in one sample. Culpability of appellants can only be
regarding one packet, from which the samples were taken. This would bring case
against appellants under Section 9 CNSA which provides for 7 years imprisonment
and fine if narcotic drug does not exceed one kilogram. PLJ 2004 Cr.C. (
Reduction of. No
distinction can be made between a foreigner and a local in sentencing such an
accused. Control of Narcotic Substances Act XXV of 1997, is a special law. It
does not create any such distinction. It is equally applicable to foreigners as
well as the locals. Appeal dismissed. PLJ 2004 Cr.C. (
Recovery of
"Poast" from appellants was proved by evidence produced by
prosecution. Defence version that "Poast" was recovered from some
"Pathan" was not spelt out from evidence. Trial Court had rightly
concluded that charge against accused was proved beyond any shadow of doubt and
had rightly convicted them. Sentence of death awarded to appellants however,
was excessive and the same was converted to life imprisonment while sentence of
fine was maintained. PLJ 2004 Cr.C. (
Recovery of big quantity
contraband material (Poast) was proved by five witnesses produced by
prosecution. None of prosecution witnesses had any malice or enmity against
appellants. Police was not shown to have planted fake recovery of such huge
quantity of "Poast", value of which runs two lacs rupees just to show
its efficiency. Recovery of "Poast" from possession of appellant
thus, stood proved beyond any shadow of doubt. PLJ 2004 Cr.C. (
Provision does not
create any distinction between various kinds of Narcotic Substances and
prescribes only minimum sentence in case of Narcotic Substances exceeds ten
kilograms. Court has to consider as to in what cases death should be awarded
and in what cases imprisonment for life. If a convict undergoing life
imprisonment under S. 9(c) of Control of Narcotic Substances Act, 1997, is
convicted for second time under same proviso. No provision in our Control of
Narcotic Substances Act, 1997. PLJ 2004 Cr.C. (
Recovery of heroin of 3
Kg. Conviction and sentence of 12 years R.I. Appeal against. During trial
police official witnesses had not even been suggested by defence that they had
any animosity against appellant whatsoever. Non-inclusion of any private
witness as a witness of recovery from appellant has not been found to be defect
serious enough to vitiate appellant's conviction. Official witnesses had made
consistent statements and contradictions in their statements highlighted by
learned counsel for appellant have been found to be minor and not of much
significance. PLJ 2004 Cr.C. (
Conviction and sentence
of life imprisonment. Appeal against. Factum of apprehension of appellant and
recovery of heroin was proved by consistent statements of witnesses produced by
prosecution. No discrepancy was pointed out in statements of witnesses of
recovery. No enmity or grudge has been alleged against such witnesses to
falsely implicate appellant. Statements of witnesses were worthy of reliance as
no material contradiction has been pointed out in their statements. No mala
fide has been alleged against complainant or any other witness to falsely
implicate appellant. Case against appellant as alleged by prosecution thus,
stood proved. PLJ 2004 Cr.C. (
Statement of witnesses
and chemical analyser report contradictory to each other. Packets were not
opened in Court and sealed gunny bags were not produced at the time of trial.
Statement of complainant was recorded after more than two years of incident.
Benefit of doubt was given to the appellants. PLJ 2004 Cr.C. (
Material available on
record would indicate that prosecution had proved its case against petitioners
beyond any shadow of doubt. Trial Court had thus, rightly convicted appellants.
Conclusions drawn and reasons advanced by trial Court would show fair evaluation
of evidence. No justification was pointed out to set aside conviction and
sentence of life imprisonment awarded to appellants. Trial Court, however, had
not mentioned sentence to be suffered by appellants in case of default of
payment of fine. Appellants in default of payment of fine would suffer 4 years
rigorous imprisonment each. PLJ 2004 Cr.C. (
Material contradictions
in prosecution evidence. PWs stated that 2 slabs of charas were sent for
chemical report while chemical examiner revealed that he had received 3 slabs.
PWs could not identify in Court which slabs were sent to examiner. Similarly
statements of PWs that other 31 slabs were packed alongwith a chit signed by
them in a fibre bag were again falsified when the bag was opened and found 32
slabs but not any chit in it. In such a situation appellants must be given
benefit of doubt. High Court accepted appeal and set aside conviction order of
trial Court. PLJ 2004 Cr.C. (
Recovery of narcotic
substances was not only proved but same had also been certified to be
"Poast" by report of chemical examiner who being state functionaries
had no malice, enmity to falsely depose against appellants. Recovery of
Narcotic Substances from possession of appellants, thus, stood proved. PLJ 2004
Cr.C. (
PWs. were cross-examined
at length, but neither any motive nor false involvement of accused was
suggested to them and also nobody was brought on record to suggest that PWs.
were inimical towards accused. It is unbelievable that higher officials of
A.N.F. would make fake recovery just to please an informer whose enmity with
accused also not proved on record. State functionaries are trust worthy
witnesses as they have no motive or enmity against accused. Recovery is proved
and certified by Chemical Reports. PLJ 2004 Cr.C. (
Neither the recovery was
made on disclosure pointation nor the house from where narcotics were allegedly
recovered, belonged to him. Appellant on suspicion was interviewed by Resaldar and
he disclosed about narcotics and then led recovery of raw charas alongwith
other contraband items, he was in custody within the meaning of Art. 40 of the
Qanun-e-Shahadat Order, 1984 and information which led to the recovery of the
contraband items, was admissible in evidence against him. Charas and other
contraband items were recovered on the disclosure and pointation of the
appellant, as such there was no need to prove that the said house was owned or
possessed by the appellant in view of the admissibility of such information in
evidence. Appellant rightly found guilty by trial Court. PLJ 2005 Cr.C. (
Statement of eye-witness
was corroborated by complainant while Investigating Officer also confirmed
recovery of huge quantity of heroin from vehicle which was being driven by
appellants and their co-accused. Report of Chemical Examiner was also in
positive. Appellants in their statements under S. 342 Cr.P.C. have admitted
travelling at relevant time in vehicle in question, and their apprehension.
Evidence on record would show that prosecution was able to prove its case
against appellants beyond reasonable doubt. Appellants have rightly been found
guilty and convicted in accordance with law. No interference was warranted in
well reasoned judgment of trial Court. PLJ 2005 Cr.C. (
Appellant introduced M.A
as Army man and B.H.S as driver but it is not on record that appellant had the
knowledge that box contained charas. It is also on record that appellant did
not touch box. So appellant is a guilty of offence for aiding, abetment u/S. 14
CNSA and be punishable provided for the offence. Appeal dismissed with
modification in conviction. PLJ 2005 Cr.C. (
Statement u/S. 164
Cr.P.C. It is not controverted that ASJ was also
Search of `Gathri' led
to recovery of Pukhta `Charas'. Imprisonment was reduced. `Gathri' lying in
between his feet was recovered from accused's possession. Meager quantity of
four grams was separated from recovered material and sent to office of chemical
examiner. Ownership of gathri has been denied by appellant but same stand
satisfactorily proved through deposition of PWs. Accused was owner of `gathri'
containing contraband material. Prosecution witnesses produced in support of
the recovery have demonstrated, unanimity on all the material features of the
case and nothing could be gained by defence to shatter their veracity. Out of
recovered material sample of four grams was taken from one slab and sent to
chemical examiner for analysis. Report is in positive. Culpability of the
appellant can therefore only be regarding one slab from which the sample was
taken. Appellant can be held guilty to that extent. Sentence of imprisonment
for life awarded to appellant by trial Court was reduced to rigorous
imprisonment. PLJ 2005 Cr.C. (
Recovery of 200 grams of
opium and one kg 300 grams of Charas. Appreciation of evidence. Contradiction
of. Overwriting. Time was added subsequently as the shade of ink and
handwriting regarding the time were different from shade of ink and handwriting
of the complaint. Statement of PWs knocked out the story of prosecution about
occurrence. Not only contradiction of PWs but it as also noteworthy that in
fact four parcels were prepared and motorcycle of the appellant was also taken
into possession. Such a long delay in sending parcels to the office of chemical
examiner casts doubt on prosecution case. Instant case was swollen with doubts.
PLJ 2005 Cr.C. (
Confiscation of vehicle
from which contrabands were recovered. Vehicle in-question, was admittedly used
for transportation of narcotics with knowledge of petitioner, therefore, the
same was rightly confiscated under provision of Control of Narcotic Substances
Act, 1997. Besides petitioner did not claim ownership of vehicle during trial,
therefore, he was not entitled to claim the same. PLJ 2005 Cr.C. (
Conviction and sentence
of imprisonment, assailed. Despite confession of co-accused, prosecution proved
that appellants had knowledge and participated in transportation of recovered
narcotics. Defence could not prove as to why police would involve appellants
falsely especially when none of raiding party had any enmity against them.
Guilt of accused was thus, proved beyond any shadow of doubt. PLJ 2005 Cr.C. (
Quantum of
evidence/proof. Property received by chemical examiner does not tally with
property sent by Investigation Officer to him. Neither number of packets nor
weight of substance received by chemical analyzer was tallying with number and
weight of substance sent by
customs officials. Prosecution case was thus, adversely affected
and case against petitioner was not proved beyond any shadow of doubt. PLJ 2005
Cr.C. (
Appreciation of.
Prosecution could not point out any conduct of appellant or evidence of
abetment of appellant with driver of vehicle on which container in question,
was being transported. No piece of evidence on point of conspiracy or abetment
connecting appellant with commission of crime being available on record, he
could not be connected with commission of crime. Prosecution did not properly
handle its case at the time of trial as it did not bring required evidence on
record. Investigating Officers also did not investigate the case properly, as
he did not collect required evidence. Case against petitioner having become
doubtful, appellant was entitled to benefit of doubt resulting in his
acquittal. PLJ 2005 Cr.C. (
Conviction and sentence
against appellants on basis of evidence against appellants was rightly
concluded by trial Court. Life sentence imposed upon principal accused was
already lenient and the same was maintained. Sentence of 10 years imposed upon
co-accused, however seemed to be excessive. Sentence of co-accused was reduced
to that which he had already undergone. PLJ 2005 Cr.C. (
Prosecution has
successfully proved possession of narcotics from all appellants. Appellants in
disproof of presumption under S. 29, Control of Narcotic Substances Act, 1997,
neither appeared nor produced any witness in defence. Prosecution has thus,
successfully proved its case to sustain conviction. Quantum of sentence of
death awarded to appellant was however, not confirmed and was converted to
imprisonment for life. Sentence of fine awarded to co-appellants was reduced.
PLJ 2005 Cr.C. (