Gangaram vs The State Of Madhya Pradesh

narcotic drug under the NDPS Act, in the truck. On

inquiry, the Appellant who was the driver of the truck

produced permit No.198 dated 13.07.2000 issued by the

District Excise Officer, Neemuch for transportation of

poppy straw from the cultivators of villages Patial,

Fusariya, and Dhogaon from 9:00 a.m. till 8:00 p.m. on

14.07.2000. The licence also contained names of the

cultivators from the above villages. The Appellant

disclosed to the Head Constable that he loaded the poppy

straw from village Palasiya with the assistance of Ashish,

son of Om Prakash Paliwal, resident of village Badvasa

who was an agent to the contractor Bishan Singh. As

Shivshankar, Head Constable did not have the power to

seize poppy straw under the provisions of the NDPS Act,

he took the truck driver i.e. the Appellant along with the

truck to the police station. The FIR was registered in the

police station Singoli, District Neemuch on 15.07.2000.

The narcotic drug was unloaded from the truck and was

found to be 415 kilograms in weight. Each bag was

2 marked as Article 1 to Article 10 and two samples of 250

grams from each bag were taken and sealed. The

samples of poppy straw were sent to the Forensic Science

Laboratory for chemical examination in which it was

found that the seized materials are pieces of poppy straw.

3. On completion of investigation, a charge sheet was

filed. The accused denied committing any offence.

Though he made a prayer for summoning 10 witnesses in

his defence, he did not adduce any evidence by

summoning any witnesses. The defence of the Appellant

was that he was legally transporting the goods of the

licensee contractor Bishan Singh who had a valid licence

issued by the District Excise Officer. A charge was framed

against the Appellant under Section 8 read with Section

15 and Section 8 read with Section 26 of the NDPS Act.

The Trial Court framed the following issues for

consideration under Section 8 read with Section 15 of the

Act which are:

a). Whether, the seized material is the psychotropic substance poppy straw i.e. is the Dodachura?

b). Whether, the accused in violation of the provisions of the NDPS Act, or the rules made thereunder, has kept in his possession 415 kilograms of poppy straws, or transported or purchased or sold.

3 c). Whether, the accused has committed any offence.

4. The Trial Court also framed issues under Section 8

read with Section 26 of the Act which are as follows:

a). Whether, the holder of the licence, permit or authorization granted under this Act or any rule or order made thereunder or any person in his employ and action on his behalf has failed to produce without any reasonable cause such licence, permit or authorization on demand;

OR

b). Omitted without any reasonable cause to maintain accounts or to submit any return in accordance with the provisions of this Act or any rule made thereunder?

OR

c). kept any accounts or makes any statement, which is false or which he knows or has reason to believe to be incorrect;

OR

d). Willfully and knowingly did any act in breach of any of the conditions of licence, permit or authorization for which a penalty is not prescribed elsewhere in this Act.

OR

e). Whether, the accused has committed any offence.

5. The Trial Court referred to the case of the defence

which was that the transportation of poppy straw was

on the strength of a licence issued by the competent

authority and that the accused was falsely implicated in

the case. It was the further case of the defence that

4 due to rain, the truck could not go inside the villages

from which the poppy straw had to be collected. At the

most, even if there was violation, it was a breach of the

conditions of the permit for which a sentence under

Section 26 of the NDPS Act is attracted but not Section

15. According to the defence counsel, the charge under

Section 8 read with Section 15 of the NDPS Act was not

made out. The Trial Court found that there is no

dispute that the goods seized was poppy straw i.e.

Dodachura weighing 415 kilograms. According to the

Trial Court, not much importance need be given to the

fact that the samples of the seized poppy straw were

not produced in the Court in view of the admission

made by the Appellant regarding the search and the

seizure. The main point that was argued on behalf of

the Appellant before the Trial Court was that the breach

of conditions of the licence would result only in

conviction under Section 8 read with Section 26 of the

NDPS Act and not Section 15 of the NDPS Act. The

prosecution was unable to prove the offence under

Section 8 read with Section 15 of the NDPS Act. The

5 Trial Court, on a consideration of the evidence on record

and interpretation of Sections 8, 15, and 26 of the NDPS

Act, concluded that the Appellant was guilty of the

offence under Section 8 read with Section 15 (c) of the

NDPS Act. The Trial Court convicted the Appellant

under Section 8 read with Section 15 (c) of the NDPS

Act and sentenced him to undergo an imprisonment of

10 years and to pay a fine of Rs.1 lakh. The truck which

was seized was held liable for confiscation in

accordance with the provisions of Section 60(3) of the

NDPS Act. The Trial Court directed confiscation of the

vehicle and sale of the same by public auction after the

period of appeal expired.

6. The High Court affirmed the conviction and

sentence of the Appellant finding no fault was

committed by the Trial Court.

7. Mr. Puneet Jain, learned counsel appearing for the

Appellant, submitted that the Prosecution failed to

discharge the burden of proving the offence. He

criticized the judgment of the High Court by which the

burden was shifted to the Appellant to prove that he is

6 innocent. He submitted that the transportation of the

poppy straw was from the villages which were

mentioned in the licence but the loading took place

from the road where the lorry was parked. Due to rain,

the truck could not be taken to the villages from which

the poppy straw had to be collected. He stated that the

prosecution did not adduce any evidence to show that

the contraband was purchased and loaded from a

village which was not mentioned in the licence. He

further argued that at the most only an offence under

Section 8 read with Section 26 of the NDPS Act has

been made out as, according to the prosecution, the

case is one of the violation of the conditions of the

licence. He submitted that the Appellant has undergone

a sentence of 8 years and he is on bail which was

granted by this Court on 05.07.2010 and a lenient view

may be taken by this Court.

8. Mr. Ravi Prakash Mehrotra, learned counsel

appearing for the Respondent-State, has submitted that

the seizure of poppy straw was admitted by the

Appellant and there was no need for the prosecution to

7 further prove the seizure. As the defence of the

Appellant was that the transportation is on the basis of

a valid licence, it was for the Appellant to prove that the

purchase of the poppy straw was from the persons

whose names are found in the licence. He took us

through Sections 8, 15, and 26 of the NDPS Act to argue

that Sections 15 and 26 operate in different fields. He

contended that the Courts below are right in convicting

the Appellant under Section 8 read with Section 15 of

the NDPS Act and there is no cause for interference with

the judgment of the Trial Court and the High Court.

9. Section 8 of the NDPS Act prohibits cultivation of

opium poppy and also prohibits, inter alia, production,

manufacture, possession, sale, purchase, and transport

of any narcotic drug or psychotropic substance.

Sections 15 and 26 of the NDPS Act which are relevant

for adjudication of this case are as under:

“15. Punishment for contravention in relation to poppy straw. -Whoever, in contravention of any provisions of this Act or any rule or order made or condition of a licence granted thereunder, produces, possesses, transports, imports inter-State, exports inter- State, sells, purchases, uses or omits to warehouse

8 poppy straw or removes or does any act in respect of warehoused poppy straw shall be punishable,

(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both;

(b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;

(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.” *** *** *** *** “26. Punishment for certain acts by licensee or his servants. - If the holder of any licence, permit or authorisation granted under this Act or any rule or order made thereunder or any person in his employ and acting on his behalf

(a) omits, without any reasonable cause, to maintain accounts or to submit any return in accordance with the provisions of this Act, or any rule made thereunder;

(b) fails to produce without any reasonable cause such licence, permit or authorisation on demand of any officer authorised by the Central Government or State Government in this behalf;

9 (c) keeps any accounts or makes any statement which is false or which he knows or has reasons to believe to be incorrect; or

(d) willfully and knowingly does any act in breach of any of the conditions of licence, permit or authorization for which a penalty is not prescribed elsewhere in this Act, he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.”

10. Section 26 deals with a wilful breach of a

condition of the licence for which a penalty is not

prescribed elsewhere in the NDPS Act and prescribes

punishment with imprisonment for a term that may

extend to three years or with fine or with both. Section

15 of the NDPS Act provides that contravention of a

licence for transportation of poppy straw involving

commercial quantity shall be punishable with rigorous

imprisonment for a term which shall not be less than 10

years but may extend to 20 years and a fine which shall

not be less than one lakh rupees which may extend to

two lakh rupees.

11. We are not impressed with the submission of the

learned counsel for the Appellant that there was a

failure on the part of the prosecution to prove the

10 offence alleged against the Appellant. It is clear from

the record that the Appellant admitted the seizure of 10

bags of poppy straw from a truck which was stationed

at village Palasiya. The only defence before the Courts

below was that the transportation was legal as it was

being done on the strength of a valid licence issued by

a competent authority. The truck was standing on a

road near village Palasiya which is 18 kilometers away

from one of the villages which is mentioned in the

license and from where the Appellant could have loaded

and transported the poppy straw according to the

licence. The conclusion of the Trial Court regarding the

guilt of the Appellant under Section 8 read with Section

15 of the NDPS Act does not call for any interference.

The defence of the Appellant is that the truck was

standing near the village Palasiya as it could not enter

the villages from where the goods were purchased due

to rain. No effort was made by the Appellant to prove

that there was any rain on that day. Though the

Appellant initially informed the Court that he wanted to

11 examine 10 defence witnesses, he did not summon any

of them to depose in the Court.

12. The other point to be considered is whether the

Appellant has been rightly convicted under Section 8

read with Section 15 of the NDPS Act. Learned counsel

for the Appellant submitted that violation of the

conditions of a licence can be punished only under

Section 26 (d) of the NDPS Act which carries a maximum

sentence of three years. Punishment under Section 26

(d) is for breach of a condition of a licence for which a

penalty is not prescribed elsewhere in the Act. Section

15 of the Act deals with punishment for contravention in

relation to, amongst other things, transportation of poppy

straw. In case the contravention involves commercial

quantity, a person shall be sentenced to rigorous

imprisonment for not less than 10 years according to

Section 15. As the contravention of license in relation to

poppy straw has been dealt with in Section 15, Section

26 of the Act is not attracted and the Courts below are

right in holding that the Appellant is liable to conviction

under Section 8 read with Section 15 of the NDPS Act. As

12 the facts of this case are different from Criminal Appeal

No. 318 of 2005, we are unable to accept the submission

of Mr. Jain that the said judgment has to be given due

weightage while considering the correctness of the

impugned judgment.

13. Though we have taken note of the fact that the

Appellant has undergone 8 years imprisonment out of the

sentence of 10 years imposed on him and that he has

been on bail since the year 2010, we cannot reduce the

sentence to the period already undergone by the

Appellant in view of the mandatory minimum sentence

provided for an offence under Section 15 (c) of the NDPS

Act being 10 years.

14. Accordingly, the appeal is dismissed. The

Appellant is directed to surrender within a period of four

weeks to undergo the remaining portion of the

sentence.

…................................J [L. NAGESWARA RAO]

............................J [M.R. SHAH] New Delhi, May 01, 2019.

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