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2017 DIGILAW 1522 (ALL)

VIKRAM GIRI v. STATE

2017-06-14

BALA KRISHNA NARAYANA

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JUDGMENT : Bala Krishna Narayana, J. 1. Heard Sri Manish Tiwary , learned Amicus Curiae for the appellant Vikram Giri and Sri Saghir Ahmad, learned AGA for the State. 2. This jail appeal is directed against the judgement and order dated 27.05.2011 passed by Additional Sessions Judge (E.C.P.), Siddharth Nagar in Special Case No. 24 of 2008, State Vs. Vikram Giri u/s 8/20, N.D.P.S. Act, 1985 (Case Crime No.358 of 2008), P.S.- Dhebrua, District- Siddharth Nagar by which the appellant has been convicted and sentenced to 10 years rigorous imprisonment and a fine of Rs. 1,00,000/- and in default of payment of fine, additional imprisonment of 2½ years. 3. Briefly stated, the facts of this case are that when informant B.K. Yadav, in-charge Police Outpost- Bharni, P.S.- Dhebrua, District- Siddharth Nagar, while going from Bharni towards Malgahiya within the territorial area of Police Outpost- Bharni in connection with maintenance of law and order and preventing smuggling, reached the trisection of Dharuaar Uttari, he saw a man coming towards them from the north who on noticing the police personnel, turned around and started walking briskly. The police personnel asked him to stop but he did not listen to them on which they become suspicious and after chasing him for about 25-30 paces, caught him at about 1830 hours. On being quizzed, he disclosed that his name was Vikram Giri, S/O Bhagwan Giri alias Ram Prasad Giri and he was resident of Mahuli, village-Vishunpur, Ward No.4, P.S.- Bahadurganj, District- Kapilvastu, Nepal. When he was further quizzed about what he was carrying in the white coloured plastic bag which he held in his right hand, he confessed that it contained charas which he had obtained from Bahadurganj. On being informed that he can be searched before a Magistrate or a Gazetted Offfcer, he consented to be searched by the police personnel who had caught him. Since no one agreed to witness the search, the police personnel after searching each other, searched the appellant. The search of his white plastic bag lead to recovery of a brown coloured plastic bundle which the appellant confessed contained charas. The substance recovered from the appellant upon being weighed by a balance and weights which were arranged by Constable No.652 Pramod Singh from village- Dharuaar, was found to be about 1 kg 150 gm. The search of his white plastic bag lead to recovery of a brown coloured plastic bundle which the appellant confessed contained charas. The substance recovered from the appellant upon being weighed by a balance and weights which were arranged by Constable No.652 Pramod Singh from village- Dharuaar, was found to be about 1 kg 150 gm. A sample of 100gm was drawn from the substance recovered from the appellant, packed in a white paper and then wrapped with a piece of white-coloured terricot cloth and sealed on the spot. The remaining charas was packed and sealed in the same black-coloured plastic bag. Two separate impressions of specimen seals were prepared on the spot. When the accused was required to produce the license for possessing charas, he admitted that he had no such license and begged to be forgiven. The appellant was informed that he had committed an offence u/s 8/20 N.D.P.S. Act and thereafter, he was formally arrested. The memo of recovery of illicit charas from the appellant was written on the spot in the light of torch and signed by the appellant as well as the constable. 4. Thereafter, the accused-appellant was taken to the police station and locked in its lock-up and the packet of substance recovered from him was deposited in the Malkhana. On the basis of the recovery memo (Ext.Ka.2), Case Crime No. 358 of 2008 u/s 8/20 N.D.P.S. Act, was registered against the appellant. Check F.I.R. (Ext.Ka.8) and the relevant G.D. Entry vide rapat no. 36 on 23.06.2008, 2050 hours (Ext.Ka.9) were also prepared and the investigation of the case was entrusted to P.W.3 S.I. Ram Chandra Bharti, who after completing the investigation, submitted charge-sheet (Ext.Ka.4) against the appellant u/s 8/20 N.D.P.S. Act before the Sessions Judge, Siddharth Nagar which was registered as Special Case No. 24 of 2008. The sample of the substance recovered from the appellant was sent by S.I. Shohratgarh on 26.06.2008 to Joint Director, Forensic Lab, Mahanagar Lucknow for chemical examination, who forwarded his report dated 06.08.2008 to the trial court (Ext.Ka.11). Learned Sessions Judge, Siddharth Nagar took cognizance of the offences u/s 8/20 N.D.P.S. Act on 19.07.2008 against the appellant and summoned him from District Jail. Copies of the documents on which the prosecution proposed to rely for proving its charge against the appellant were supplied to him. Learned Sessions Judge, Siddharth Nagar took cognizance of the offences u/s 8/20 N.D.P.S. Act on 19.07.2008 against the appellant and summoned him from District Jail. Copies of the documents on which the prosecution proposed to rely for proving its charge against the appellant were supplied to him. From the Court of Sessions Judge, Siddharth Nagar, the case was made over for trial to the Court of Additional Sessions Judge (E.C.P.), Siddharth Nagar who on the basis of the material on record and after hearing the prosecution and the appellant on the point of charge, framed charge against the appellant u/s 8/20 N.D.P.S. Act. 5. The accused abjured the charge and claimed trial. 6. The prosecution in order to prove its case against the appellant, examined as many as five witnesses. 7. P.W.1 Constable Shambhu Tiwari, in his evidence tendered before the trial court, supported the prosecution version as narrated in the recovery memo and proved the same as (Ext.Ka.1 and Ka.2). 8. P.W.2 informant S.I. Brijesh Kumar Yadav corroborated the prosecution case as spelt out in the F.I.R. (Ext.Ka.8) and the evidence of P.W.1 Constable Shambhu Tiwari on all material points. He also proved the written consent given by the appellant to be searched by the police personnel as (Ext.Ka.3). He also proved that 48 bar-shaped pieces of alleged charas, white and black plastic sheets and the white plastic bag in which they were kept and marked as (material ext.2,3 4 and 5) were the same articles which were recovered from the appellant. 9. P.W.3 S.I. Ram Chandra Bharti, the first Investigating Officer of the case, in his statement recorded during the trial, disclosed the various steps taken by him during the course of investigation. 10. P.W.4 Constable Janardan Tiwari proved the check F.I.R. (Ext.Ka.8) and the carbon copy of the G.D. Entry (Ext.Ka.9). He further deposed that he had delivered the sealed packet containing the sample drawn from the charas recovered from the appellant along with the specimen seal at Forensic Lab, Mahanagar Lucknow and till then, the sample and the specimen seal were in his custody. 11. P.W.5 Constable Janardan Prasad produced and proved the entries recorded at serial no.5 in the malkhana register dated 23.06.2008 showing that the seized articles pertaining to Case Crime No. 358 of 2008, sealed packet containing sample and specimen seal were deposited in the police station. 11. P.W.5 Constable Janardan Prasad produced and proved the entries recorded at serial no.5 in the malkhana register dated 23.06.2008 showing that the seized articles pertaining to Case Crime No. 358 of 2008, sealed packet containing sample and specimen seal were deposited in the police station. The entry was in the hand-writing of Constable Vishal Kumar Chaturvedi. He filed a photostat copy of the relevant extract and proved the same. 12. The appellant in his statement recorded u/s 313 Cr.P.C., denied the prosecution case and alleged false implication. 13. Learned Additional Sessions Judge (E.C.P.), Siddharth Nagar after considering the submissions advanced before him by learned counsel for the parties and scrutinizing the entire evidence on record, convicted the accused-appellant Vikram Giri u/s 8/20 N.D.P.S. Act and awarded aforesaid to him. Hence, this appeal. 14. Sri Manish Tiwary, learned Amicus Curiae has confined his submissions only to one ground. He expressly gave up his challenge to the finding of the Court below so far as the conviction of the appellant is concerned. In other words, the learned Amicus Curiae on behalf of the appellant accepted the finding of conviction recorded u/s 8/20 N.D.P.S. Act. Apparently, finding no merit therein, he challenged the quantum of punishment (10 years rigorous imprisonment and a fine of Rs. 1,00,000/- and in default of payment of fine, additional imprisonment of 2½ years) awarded to the appellant. 15. Sri Manish Tiwary has further submitted that Section 20(b)(ii)(C) of N.D.P.S. Act, 1985 prescribes that whoever, in contravention of any provision of this Act or any rule or order made or condition of license granted thereunder- produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable-where such contravention relates to sub-clause (b) 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. He further submitted that proviso to Section 20(b)(ii)(C) of the N.D.P.S. Act, 1985 empowers the Court, for reasons to be recorded in the judgement, to impose a fine exceeding two lakh rupees. He further submitted that proviso to Section 20(b)(ii)(C) of the N.D.P.S. Act, 1985 empowers the Court, for reasons to be recorded in the judgement, to impose a fine exceeding two lakh rupees. He next submitted that the offence proved to have been committed by the appellant under this Act in this case admittedly involves commercial quantity and as such the minimum punishment provided u/s 20(b)(ii)(C) has been awarded to him. However, considering the fact that the appellant is continuously in jail since 23.06.2008, he has already undergone imprisonment of about 8 years and 10 months till date and still continues to remain in jail, this Court may alter the award of additional imprisonment of 2½ years to the appellant under the default clause to six months additional rigorous imprisonment. According to him, Section 20(b)(ii)(c) does not prescribe any minimum period of sentence which a convict has to undergo in default of payment of fine and no reasons have been recorded by the trial Judge in the impugned judgement for awarding him 2½ years rigorous imprisonment under the default clause. According to him, this is not a case where the trial court should have awarded 2½ years rigorous imprisonment to the appellant under the default clause. Sri Manish Tiwari urged that any term of less than six months would meet the ends of justice and since in this case, 8 years and 10 months of imprisonment has already been undergone by the appellant, this Court may allow this appeal to this extent and by modifying the judgement in so far as the quantum of sentence is concerned, reduce the 2½ years rigorous imprisonment under the default clause to additional rigorous imprisonment of six months. 16. Per contra Sri Saghir Ahmad, learned AGA made his submission in support of sentence awarded by the trial court to the convict u/s 8/20 of the N.D.P.S. Act and submitted that the appellant does not deserve any leniency from this Court as he has failed to make out any case for modification of the sentence awarded to him. 17. Having heard learned counsel for the parties and on perusal of entire record of the case, I am inclined to allow this appeal in part upon finding some force in the submission made by Sri Manish Tiwary, learned Amicus Curiae on behalf of the appellant. 18. 17. Having heard learned counsel for the parties and on perusal of entire record of the case, I am inclined to allow this appeal in part upon finding some force in the submission made by Sri Manish Tiwary, learned Amicus Curiae on behalf of the appellant. 18. Though the appellant has not made any attempt to assail the finding of his conviction on merits, yet with a view to satisfy myself as to whether the finding of the Court below of conviction is legally sustainable or not, I perused the record and especially therein having so perused, I am satisfied that no case is made out to interfere in the finding of the Court below on merit for the following reasons:- Firstly, that the prosecution has been able to prove by cogent and reliable evidence that 1kg 100g of illicit charas was recovered from the appellant on 23.06.2008 at trisection of Dharuaar Uttari. Secondly, the sample drawn from the articles recovered from the appellant on being sent to the forensic lab for chemical examination was found to be charas as is evident from the report of forensic expert (Ext.Ka.11) Thus, the prosecution succeeded in proving that 1kg 100g illicit charas was recovered from the appellant for which he had failed to produce any license and hence, the offence committed by him under the N.D.P.S. Act involved commercial quantity. 19. I, therefore, uphold the finding of conviction of the appellant u/s 8/20 of the N.D.P.S. Act recorded by the trial court. 20. Now, the question arises as to whether the appellant's sentence should be reduced and if so, to what extent, as urged by Sri Manish Tiwary, learned Amicus Curiae on behalf of the appellant. 21. In order to appreciate the aforesaid submission made by Sri Manish Tiwary, learned Amicus Curiae on behalf of the appellant, it would be useful to extract Sections 8 and 20 of the N.D.P.S. Act along with it's proviso:- 22. 21. In order to appreciate the aforesaid submission made by Sri Manish Tiwary, learned Amicus Curiae on behalf of the appellant, it would be useful to extract Sections 8 and 20 of the N.D.P.S. Act along with it's proviso:- 22. Section 8:- Prohibition of certain operations No person shall- (a) cultivate any coca plant or gather any portion of coca plant; or (b) cultivate the opium poppy or any cannabis plant; or (c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation: Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf: 1[Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.] Section 20:- Punishment for contravention in relation to cannabis plant and cannabis Whoever, in contravention of any provisions 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- 1[(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 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) 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.] 23. Thus, Section 20 of N.D.P.S. Act stipulates that whoever, in contravention of any provisions of this Act or any rule or order made or condition of license granted thereunder-produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable- where such contravention relates to sub-clause (b) 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. He further submitted that proviso to Section 20(b)(ii)(C) of the N.D.P.S. Act, 1985 empowers the Court, for reasons to be recorded in the judgement, to impose a fine exceeding two lakh rupees. Section 20 of the N.D.P.S. Act does not prescribe any minimum period of imprisonment which a convict shall be required to undergo in case he fails to deposit the awarded fine. In the present case, the fine awarded is Rs. 1,00,000/- and in default of payment of fine 2½ years of additional rigorous imprisonment has been awarded. 24. I have perused the impugned judgement and particularly the sentence part. But no reason has been given by the learned trial Judge for awarding additional rigorous imprisonment of 2½ years under the default clause. Record shows that on the date of the incident, the appellant was aged about 30 years. He has no criminal antecedent to his credit. He is in jail for the last 8 years and 10 months and there has never been any complaint against him. 25. Thus, upon a wholesome appraisal of the facts of the case and a careful evaluation of the facts on record, both oral as well as documentary, this Court is of the view that the prosecution fully succeeded in bringing home the charge framed against the accused-appellant by the trial court and hence the recorded conviction of the appellant u/s 8/20 of the N.D.P.S. Act and the sentence of 10 years rigorous imprisonment and fine of Rs. 1,00,000/- awarded to him by the trial court do not warrant any interference by this Court but the sentence of 2½ years additional rigorous imprisonment awarded to him in default of payment of fine of Rs. 1,00,000/- calls for modification. 26. 1,00,000/- awarded to him by the trial court do not warrant any interference by this Court but the sentence of 2½ years additional rigorous imprisonment awarded to him in default of payment of fine of Rs. 1,00,000/- calls for modification. 26. In the light of the foregoing discussion, the appeal succeeds and is allowed in part. 27. The conviction of the appellant u/s 8/20 of the N.D.P.S. Act and the sentence (10 years rigorous imprisonment and a fine of Rs. 1,00,000/- are upheld. But the additional imprisonment of 2½ years awarded to him in default of payment of fine is altered and is accordingly reduced to six months additional rigorous imprisonment. 28. To this extent, the impugned judgement and order stands modified. 29. The accused-appellant Vikram Giri is in jail. He shall be released after serving out the remaining part of his modified sentence. 30. There shall be however no order as to costs.