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2018 DIGILAW 1820 (HP)

State of Himachal Pradesh v. Uday Ram

2018-10-11

SANDEEP SHARMA, SANJAY KAROL

body2018
JUDGMENT : SANDEEP SHARMA, J. Cr.M.P.(M) No.1325 of 2018 1. Averments contained in the application, which is duly supported by an affidavit, suggest that the matter remained pending with the Law Department for quiet considerable time and, as such, delay of 72 days in filing the appeal has occurred, which delay has otherwise been sufficiently explained in the application. 2. Having carefully perused averments contained in the application, we are convinced and satisfied that delay in maintaining the accompanying appeal is neither willful nor intentional, rather the same is occurred on account of lengthy administrative process. This application is accordingly allowed. The delay in filing the appeal is condoned in the interest of justice. The application is disposed of. 3. Appeal be registered. Cr.Appeal No.401 of 2018 4. Having carefully perused grounds taken in the appeal vis-à-vis impugned order of acquittal dated 9.5.2018 recorded by learned Special Judge-II, Kinnaur at Rampur in case No.5-R13 of 2017, this Court deems it fit to dispose of the present petition at the admission stage. 5. For having bird’s eye view, facts on record are that on 8.5.2016, police party, after having received a secret information, visited the fields owned by respondent-accused (hereinafter referred to as the ‘accused’) at village Shandal, where owner of the aforesaid fields accused Mr.Udham Singh @ Uday Ram was also present on spot, who on inquiry admitted the fields to be his own. At the spot, Investigating Agency found accused to have grown 22 plants of opium poppy, which were uprooted and were packed in a bag and bag was sealed in cloth parcel with three seal impressions of ‘T’. Investigating Officer, during investigation, also got the land demarcated and found that the same was in possession of accused. After completion of investigation, police presented the challan under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (for short ‘Act’) against the accused in the competent Court of law. 6. The learned Court below, on being satisfied that prima facie case exists against the accused, summoned the accused in the Court. At the time of framing of charge, accused pleaded guilty and did not claim trial. Record reveals that accused was informed by the Court that he was not bound to make confession and if the same is made by him, it can be used against him for conviction and sentence purpose. 7. At the time of framing of charge, accused pleaded guilty and did not claim trial. Record reveals that accused was informed by the Court that he was not bound to make confession and if the same is made by him, it can be used against him for conviction and sentence purpose. 7. Learned Court below, after having recorded the statement of the accused Uday Ram, convicted him for having committed offence punishable under Section 18 of Act. Subsequently, vide impugned order, on the same day, learned Court below, while hearing the accused on quantum, sentenced him to imprisonment already undergone by him during investigation and trial of the case and to pay an amount of Rs.8,000/- as fine. Court below further ordered that in default of payment of fine, the convict would further undergo simple imprisonment for one month. In the aforesaid background, appellant-State has approached this Court in the instant proceedings, praying therein for enhancement of conviction awarded by the Court below. 8. Having carefully perused the material available on record vis-a-vis reasoning assigned in the impugned judgment/order of conviction passed by the Court below, this Court is not persuaded to agree with the contention raised by Ms.Reeta Goswami, learned Additional Advocate General representing the appellant-State, that the trial Court, while holding accused guilty of having committed offence punishable under Section 18 of the Act, has awarded inadequate sentence. 9. Admittedly, in the instant case, accused fairly admitted the factum with regard to his having planted 22 plants of opium and no material whatsoever came to be placed on record by the prosecution suggestive of the fact that accused remained involved in such kind of activities in past also, rather record clearly reveals that convict is a poor person and sole bread earner of the family and apart from above, he is the first offender. 10. Section 18 of the Act reads as under:- “18. 10. Section 18 of the Act reads as under:- “18. Punishment for contravention in relation to opium poppy and opium.—Whoever, in contravention of any provision of this Act or any rule or order made or condition of order made or condition of licence granted there under, cultivates the opium poppy or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses opium 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 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 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; (c) in any other case, with rigorous imprisonment which may extend to ten years and with fine which may extend to one lakh rupees.” 11. Section 18 of the Act, reproduced hereinabove, clearly provides that where the contraband involves small quantity accused may be sentenced for rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both. 12. “Small Quantity” and “Commercial Quantity” with respect to cultivation of opium poppy is not specified separately in the Act as offence in this regard is covered under clause (c) of Section 18 of the Act. 13. In the case at hand, it is not in dispute that only 22 opium plants came to be recovered by the Investigating Agency from the fields of the accused, which in no terms can be deemed to be a “Commercial Quantity” and, as such, this Court finds no illegality and infirmity in the impugned order passed by the Court below while sentencing the accused for imprisonment already undergone by him. 14. Otherwise also, in terms of Section 18(c) person can be sentenced with rigorous imprisonment which may extend to ten years and with fine which may extend to one lakh rupees. 14. Otherwise also, in terms of Section 18(c) person can be sentenced with rigorous imprisonment which may extend to ten years and with fine which may extend to one lakh rupees. Since “Small Quantity” & “Commercial Quantity” with respect to cultivation of opium poppy has not been prescribed in the Act itself, offence in this regard is covered under Section 18(c), wherein legislature has very carefully used words “in any other case”, meaning thereby Courts while awarding sentence under Section 18(c) shall of its own wisdom, taking note of quantity/bulk of cultivation of opium poppy, award sentence. In the instant case, admittedly, only 22 plants of opium came to be recovered from the fields of the accused and as such punishment awarded by Court below cannot be said to be inadequate. 15. Consequently, in view of the detailed discussion made herein above, this Court sees no reason to differ with the impugned order passed by the learned court below and the same is accordingly upheld. Accordingly, the appeal is dismissed being devoid of any merits.