Non-Reportable  

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No.1510 of 2010

GANGARAM .... Appellant(s)

Versus

THE STATE OF MADHYA PRADESH                                               …. Respondent

(s) J U D G M E N T

L. NAGESWARA RAO, J.

1. This Appeal is filed against the judgment of the High

Court  by  which  the  conviction  of  the  Appellant  under

Section 8 read with Section 15 (c) of the Narcotic Drugs

and  Psychotropic  Substances  Act,  1985  (hereinafter

referred  to  as  the ‘NDPS Act’)  and the sentence  of  10

years  with  fine  of  Rs.1  lakh  was  affirmed by  the  High

Court.   

2. On  14.07.2000,  Head  Constable  Shivshankar

working at Police Station Singoli, District Neemuch went

to  village  Palasiya  on  duty.  While  coming  back  from

village Palasiya after conducting an inquiry in a complaint

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filed under Section 174 Cr.  P.C.,  he found Truck No.MP-

14-/1765 parked on a road outside the village Zhantla.

On checking the lorry, he found 10 bags of poppy straw, a

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

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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.  

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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

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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

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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

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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

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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

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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;  

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(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

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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

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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

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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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