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Thursday, January 24, 2013

The appellant has neither been successful in rebutting the statutory presumption of the existence of culpable mental state under Section 35 of the Act nor has he been able to prove, beyond reasonable doubt, the statutory exception provided under Section 60(3) of the Act, before both the Courts below.; except that the appellant is a disabled person and, therefore, the disability of the disabled person, which is a vital factor, operating in his favor, so as to determine his culpability vis-à-vis the use of his canter by A1 to A3 for indulging in transportation of the contraband substances has to be considered. 5. The aforesaid issue which we have noticed in our order, was not canvassed by the appellant either before the Trial Court or before the High Court and, therefore, we cannot permit the appellant to raise the said issue for the first time before us. Having said so, we have still looked into the disability certificate so produced by the appellant before this Court. The certificate would only show that one of the appellant's legs is amputated and, therefore, there is 60% physical disability. The factum of a person being physically disabled does not imply that he would accord his permission to the use of his vehicle for an offence punishable under the provisions of the Act and, therefore, in our opinion, the submission of the learned counsel is devoid of any merit and, thus, is liable to be rejected.


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1771 OF 2011


ABBAS ALI                                         APPELLANT

                                   VERSUS

STATE OF PUNJAB                              RESPONDENT

                                  O R D E R


1.          This Criminal Appeal is directed against the judgment and  order
passed by the High Court of Judicature of Punjab and Haryana  at  Chandigarh
in Criminal Appeal No. 440-SB of 1997, dated 08.09.2008.   By  the  impugned
judgment and order, the High Court has confirmed the judgment of  conviction
and order of sentence passed by the Trial Court, dated  21.05.1997,  whereby
the appellant before us has been convicted for the offence punishable  under
Section 25 of the Narcotic Drugs & Psychotropic Substances Act,  1985  (“the
Act” for short) and sentenced to undergo rigorous imprisonment for a  period
of 10 years alongwith a fine of Rs. 1,00,000/-, in  default  of  payment  of
which he was sentenced  to  undergo  rigorous  imprisonment  for  a  further
period of six months.

2.          The facts, relevant to this appeal, are: A recovery of  10  bags
containing rice polish and 37 bags  containing  poppy  husk,  in  accordance
with the provisions of the Act, was made from  three  accused  persons  (for
short “A1”,  “A2”,  and  “A3”,  respectively).  The  said  bags  were  being
transported in a canter registered in  the  name  of  the  appellant  herein
(referred to as A4 before the Trial Court). A1 to A3 were  arrested  at  the
time of recovery, however A4 was arrested later. Upon trial, A1 to  A3  were
convicted by the Trial Court for the offence under Section  15  of  the  Act
and awarded similar sentence as the appellant herein. By  the  judgment  and
order of the High Court, dated 13.05.2008, in an  appeal  preferred  by  the
said  three  accused  persons,  their  conviction  and  sentence  has   been
confirmed by the High Court. The said three accused persons are  not  before
us in this appeal.

3.          The Trial Court and the High Court have elaborately  dealt  with
the case of the appellant in their  respective  judgments  and  orders.  The
appellant  has  neither  been  successful   in   rebutting   the   statutory
presumption of the existence of culpable mental state under  Section  35  of
the Act nor has  he  been  able  to  prove,  beyond  reasonable  doubt,  the
statutory exception provided under Section 60(3) of  the  Act,  before  both
the Courts below.

4.          Before us, in this appeal, the  learned  counsel  appearing  for
the appellant would take up the very same contentions  that  were  canvassed
before the Trial Court and the High Court, except that the  appellant  is  a
disabled person and, therefore,  the  disability  of  the  disabled  person,
which is a vital factor, operating in his favor,  so  as  to  determine  his
culpability vis-à-vis the use of his canter by A1 to  A3  for  indulging  in
transportation of the contraband substances has to be considered.


5.          The aforesaid issue which we have noticed in our order, was  not
canvassed by the appellant either before the Trial Court or before the  High
Court and, therefore, we cannot permit  the  appellant  to  raise  the  said
issue for the first time before us. Having said so,  we  have  still  looked
into the disability certificate so produced by  the  appellant  before  this
Court.  The certificate would only show that one of the appellant's legs  is
amputated and, therefore, there is 60% physical disability. The factum of  a
person being physically disabled does not imply that  he  would  accord  his
permission to  the use of his vehicle for an offence  punishable  under  the
provisions of the Act and, therefore, in our opinion, the submission of  the
learned counsel is devoid of any merit and, thus, is liable to be rejected.

6.          Insofar as the other submissions made  by  the  learned  counsel
are concerned, the same have been answered both by the Trial Court  and  the
High Court. Having carefully perused through the  judgments  and  orders  of
the Courts below and re-appreciating the  evidence  on  record,  we  are  in
agreement with the reasoning and the conclusion reached by the  High  Court.
In our considered opinion, the conviction and  sentence  so  passed  by  the
Trial Court and confirmed by  the  High  Court  does  not  suffer  from  any
perversity.




7.          In that view  of  the  matter,  this  appeal  is  liable  to  be
dismissed and is, therefore, dismissed accordingly.

            Ordered accordingly.



                                                   .......................J.
                                                                (H.L. DATTU)



                                                   .......................J.
                                                              (RANJAN GOGOI)

NEW DELHI;
JANUARY 15, 2013.

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