2015 (8) TMI 970 - HC - Customs

High Court Affirms Legality of Search & Seizure, NDPS Act Charges, Sentencing; Considers Mitigating Factors

NARCOTICS CONTROL BUREAU Versus NTHADISENG JOSEPHINA BULAYA & ANR.

The High Court upheld the trial court's findings on the legality of the search and seizure, the validity of charges under Section 25A of the NDPS Act, and ... Attempt to export controlled substance – Investigation Officer conducted search of luggage of both accused and pseudoephedrine (controlled substance) weighing its 28.750 kg and 20.900 kg were recovered – Trial court after taking into consideration nature of offence and reasons for which they appear to have committed offence imposed sentence of rigorous imprisonment with fine on both convicts – Whether punishment awarded by trial court was just – Held that:- sole purpose of punishing offender is not retribution alone and that Courts while sentencing offender must make attempt, within parameters of law, to afford opportunity to offender to reform himself and lead life of normal, useful member of society – Convicts have no previous criminal antecedents and it does appear from totality of attendant circumstances and material on record that they are not at all hardened criminal but were forced due to their economic conditions to indulge in illegal trafficking of controlled substance – Both convicts have young children to look after and it is also to be borne in mind that convicts are women –Both convicts had themselves admitted at stage of recording their statement under Section 313 Cr.P.C that they were making attempt to transport same at behest of some other persons –Appeal disposed off with direction that both accused be deported to their country – Decided against Revenue. Issues Involved:1. Legality of the search and seizure operations.2. Validity of the charges framed under Section 25A of the NDPS Act.3. Adequacy of the sentence imposed by the trial court.4. Consideration of mitigating circumstances in sentencing.Issue-wise Detailed Analysis:1. Legality of the search and seizure operations:The search and seizure operations were conducted based on information received by Sh. Rajesh Kumar, IO, from Inspector Tulsi Ram, CISF, about two foreign nationals suspected of carrying narcotic drugs. The information was documented and a raiding team was formed. The suspects were served with notices under Section 50 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) and informed of their right to be searched before a Magistrate or a Gazetted Officer, which they waived. The search led to the discovery of pseudoephedrine hydrochloride concealed in various items within their luggage. The contraband was seized, sealed, and test memos were prepared. The accused were served with summons under Section 67 of the Act and their voluntary statements were recorded.2. Validity of the charges framed under Section 25A of the NDPS Act:The trial court framed charges against the accused for attempting to export pseudoephedrine hydrochloride outside India, an offense punishable under Section 25A of the NDPS Act. The prosecution presented evidence, including the CRCL report confirming the substance as pseudoephedrine hydrochloride, which was not disputed by the defense. The trial court concluded that the accused had the intention of exporting the substance illegally, and the presumption under Section 54 of the Act was not rebutted by the accused.3. Adequacy of the sentence imposed by the trial court:The trial court sentenced the accused to one year of rigorous imprisonment and a fine of Rs. 75,000/- each, with an additional two months of simple imprisonment in default of payment. The appellant challenged the sentence as inadequate, arguing that it failed to consider the social impact and the need for a deterrent effect. The appellant cited the Supreme Court's decision in Union of India vs. Kuldeep Singh, emphasizing the necessity of imposing appropriate sentences that reflect societal conscience and deter criminal behavior.4. Consideration of mitigating circumstances in sentencing:The trial court considered the nature of the offense, the social and economic status of the convicts, and their reasons for committing the offense. The accused, both single mothers with dependent children and parents, were lured into trafficking due to financial hardships. The trial court noted that the convicts had no prior criminal records and were not hardened criminals, but were driven by economic conditions. The court emphasized the importance of offering an opportunity for reform and noted that imposing a harsh sentence would not serve justice. The High Court agreed with this reasoning, acknowledging the trial court's balanced approach in sentencing.Conclusion:The High Court upheld the trial court's findings on the legality of the search and seizure, the validity of the charges under Section 25A of the NDPS Act, and the adequacy of the sentence. The High Court agreed that the trial court appropriately considered the mitigating circumstances and the need for reformation. The appeal for enhancing the sentence was disposed of with a direction for the deportation of the accused and the payment of the imposed fine.