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2007 DIGILAW 87 (UTT)

PURAN SINGH v. STATE OF UTTARAKHAND

2007-03-06

DHARAM VEER

body2007
JUDGMENT Hon’ble Dharam Veer, J. 1. This is a criminal Jail Appeal against the judgment and order dated 29.07.2004 passed by Sessions Judge, Bageshwar in Criminal Special Trial No. 16 of 2004, whereby the Sessions Judge has convicted the appellant under section 20-B read with Section 22 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, hereinafter referred as N.D.P.S. Act) and sentenced him to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs. 10,000/- and in default of payment of fine, further undergo rigorous imprisonment for a period of one year. 2. Brief facts of the prosecution case, as emerged out from the record, are that on 23.02.2004 the police party comprising of S.S.I. Surendra Singh Kushwaha, Constable No. 67 Ajab Singh and Constable No. 163 Ajab Singh and Jeep driver Jagdish Singh were on patrolling duty. At about 10.30 p.m. they reached the iron bridge of Balighat. They saw a person coming from front side and having seen the police personnel, he started. S.S.I. Surendra Singh asked the person as to why he scared, he told that he had some charas in this possession so he scared. The accused was asked whether he wants to be searched before a Gazetted Officer as he was having charas in his possession, the accused replied that he had faith on them and expressed his desire to be searched by the police personnel. The police party apprehended the accused and conducted the search of the accused and a no objection search (Ext. Ka. 2) was prepared. On being made search of the accused, the police recovered 290 grams of charas from his possession. A recovery memo (Ext. Ka. 1) was prepared on the spot regarding the recovery of Charas from the accused and copy of the recovery memo was given to the accused. Thereafter the police party returned to the police station and lodged the report against the accused and prepared a chick FIR which is Ext. Ka. 3 on record. The investigation was handed over to Sri Kalyan Singh, SI. The recovered charas (Material Exts. 1 and 2) was produced before the trial court. The report of the Chemical examiner reveals that sample was found to be charas. The investigation was conducted by S.I. Kalyan Singh and after completing the investigation he has submitted the charge sheet (Ext. Ka. 5). 3. The recovered charas (Material Exts. 1 and 2) was produced before the trial court. The report of the Chemical examiner reveals that sample was found to be charas. The investigation was conducted by S.I. Kalyan Singh and after completing the investigation he has submitted the charge sheet (Ext. Ka. 5). 3. A charge under Section 20-B read with section 22 of the N.D.P.S. Act was framed against the appellant. The appellant denied the charge and claimed trial. 4. The prosecution, in order to support its case, examined PW 1 SSI Surendra Singh Kushwaha, PW 2 constable No. 67 Ajab Singh, PW 3 constable Nandan Prasad and PW 4 SI Kalyan Singh. 5. The learned Sessions Judge, Bageshwar on his appreciation of the evidence on record, held that the prosecution had proved its case against the appellant beyond reasonable doubt and sentenced him to undergo RI for five years and a fine of Rs. 10,000/- and in default of payment of fine, further undergo RI for one year under section 20-B read with section 22 of N.D.P.S. Act. 6. I have heard Sri Durga Singh learned Amicus Curiae for the appellant and Sri Nandan Arya, learned A.G.A. for the State. 7. Learned Amicus Curiae has pressed this appeal only on the point of sentence. He has submitted that he does not want to argue on the point of conviction because the conviction order passed by the learned Sessions Judge is justified and correct on the basis of evidence produced by the prosecution before the trial court. I also agree with the finding of conviction based on the evidence of the prosecution witnesses PW 1 SSI Surendra Singh Kushwaha, PW 2 constable Ajab Singh, PW 3 constable Nandan Prasad and PW 4 S.I. Kalyan Singh that on 23.02.1984 at about 10.30 p.m. at the iron bridge of Balighat 290 grams charas was recovered from the possession of the appellant and it has been proved by the report of the Chemical Examiner of the Laboratory. Thus, on the point of conviction I also hereby confirm the judgment passed by the learned Sessions Judge, Bageshwar under section 20-B read with section 22 of the N.D.P.S. Act. 8. Learned Amicus Curiae argued that the sentence awarded to the appellant is excessive and submitted that appellant is a young man and this is his first crime. Thus, on the point of conviction I also hereby confirm the judgment passed by the learned Sessions Judge, Bageshwar under section 20-B read with section 22 of the N.D.P.S. Act. 8. Learned Amicus Curiae argued that the sentence awarded to the appellant is excessive and submitted that appellant is a young man and this is his first crime. He is not a professional criminal and he has not been convicted prior to this in any other case except the present case. The appellant prior to this incident, was in the service of Home Guard. The learned Amicus Curiae has submitted that considering his future and the age his sentence may be reduced. The learned Amicus Curiae has submitted that for charas the small quantity is 100 grams and commercial quantity is 1 Kg. The learned A.G.A. has conceded this fact also. Section 20 and 22 of the N.D.P.S. Act are reproduced below : “20. Punishment for contravention in relation to cannabis plant and cannabis. - Whoever, in contravention of any provsions of this Act or any rule or order made or condition of licence granted thereunder :- (a) cultivates any cannabis plant; or (b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable - [(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees; and (ii) where such contravention relates to sub-clause (b).- (A) and 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) and involves quan;tity lesser than commercial quanity 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) and 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.”] “22. Punishment for contravention in relation in psychotropic substances.- Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any psychotropic substance 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.” 9. As per section 20-B read with section 22 of the N.D.P.S. Act it was provided that where the contravention involves quantity lesser than commercial quantity but greater than small quantity, he shall be sentenced with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees. Considering the abovesaid facts and circumstances, age of the appellant and other factors of the case, three years’ R.I. instead of five yeas’ R.I. and a fine of Rs. 10,000/- will serve the ends of justice in the present case. 10. In view of the foregoing discussion the appeal is partly allowed. The conviction of the appellant under section 20-B read with section 22 of N.D.P.S. Act is maintained. The appellant is sentenced to suffer rigorous imprisonment for a period of 3 years instead of 5 years’ rigorous imprisonment under section 20-B read with section 22 of N.D.P.S. Act and to pay a fine of Rs. 10,000/-. In default of payment of fine, the appellant shall further undergo rigorous imprisonment for a period of one year, as awarded by the learned Sessions Judge. The sentence of the appellant is modified to this extent only. 10,000/-. In default of payment of fine, the appellant shall further undergo rigorous imprisonment for a period of one year, as awarded by the learned Sessions Judge. The sentence of the appellant is modified to this extent only. The record of the trial court be sent to the concerned court immediately for compliance.