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.
