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2018 DIGILAW 1880 (ALL)

Vikky v. State Of U. P.

2018-08-28

ARVIND KUMAR MISHRA I

body2018
JUDGMENT : Arvind Kumar Mishra-I, J. 1. This appeal challenges the judgment and order of conviction dated 25.11.2016 passed by the Additional Sessions Judge, Court No.18, Agra, in Session Trial No.16 of 2016 State Vs. Vikky son of late Kishan Lal, under Section 8/20 of N.D.P.S. Act, Police Station Shahganj, District Agra, whereby the appellant was sentenced to ten years rigorous imprisonment with fine Rs.50,000/, in case of default in payment of fine, he would be required to suffer additional six months imprisonment. 2. Heard Ms. Seema Pandey, learned amicus curiae for the appellant, Sri Om Narain Tripathi, learned A.G.A. for the State and perused the record. 3. Facts relevant for adjudication of this appeal appear to be that on 22.12.2015, S.I. Mahesh Singh, Incharge Police Outpost Sarai Khwaja, Police Station Shahganj, District Agra in company with other police personnel was busy in maintaining law and order and had left the Police Station vide Rapat No.2, Time 00:10 hours. As soon as the police party led by the aforesaid Sub-Inspector reached near Arjun tri-crossing at Railway double Fatak, while proceeding towards Nagala Chhaua, the police party sighted one man under railway bridge. No sooner did he see the police personnel than he suddenly turned back and began to scampering away from the scene which created suspicion in the mind of the police party and they apprehended the accused-appellant around 4:30 a.m. on 22.12.2015 on the road leading to Nagala Chhaua ahead of the railway bridge. When he was enquired, he explained his name Vikky son of Kishan Lal. 4. On being asked as to why he was scampering from the scene, he told that he was possessing Charas, therefore, he got perplexed on seeing the police and started running away from the scene. He was told by the police party that he has option to be searched before a gazetted officer or a Magistrate whereupon he reposed trust in the police party for being searched, therefore, consenting letter was prepared and search was carried out by the police party then one packet was recovered from the right pocket of his trouser. The balancing equipment was arranged by Constable Jahid Khan. The packet weighed 120 gram. The balancing equipment was arranged by Constable Jahid Khan. The packet weighed 120 gram. Apart from that, Rs.20/- was also recovered from his pocket and after ensuring compliance of the guidelines of the Human Rights Commission and Hon'ble Apex Court, the accused-appellant was taken into custody for committing offence under Section 8/20 of N.D.P.S. Act. 5. It has been described that no public witness agreed to stand as a witness to the fact of arrest and recovery. The memo of arrest and recovery was prepared by S.I. Mahesh Singh on the spot and it was read over and explained to the accused-appellant. The police party and the accused-appellant made their endorsement on it and a copy whereof was given to the accused-appellant. This memo is Ext. Ka2. 6. Pursuant thereto, the case was lodged at Police Station Shahganj on 22.12.2015 at 6:30 p.m. at Case Crime No.0991 of 2015 under Sections 8/20 of N.D.P.S. Act and relevant entries were made in the concerned general diary of the same day i.e. 22.12.2015 and the case was registered against the accused-appellant. Check FIR is Ext. Ka3. 7. The investigation ensued and the Investigating Officer after completing the investigation filed charge sheet against the accused-appellant. 8. Relevant to mention that report sent by the Vidhi Vigyan Prayogshala regarding the recovered substance confirmed the same to be contraband Charas. 9. Pursuant thereto, the charge was framed against the appellant under Section 8/20 of N.D.P.S. Act. 10. In turn, the prosecution was required to adduce its testimony whereupon the prosecution produced Mahesh Singh PW1 before the trial court who in his testimony has proved the fact of apprehension, search and seizure of Charas from the possession of the accused-appellant and has proved Ext. Ka1, Ext. Ka2, Ext. Ka3, Ext. Ka4, Ext. Ka5, Ext. Ka6 and Ext. Ka7 in his examination in chief. While his cross examination was to be done by the accused/defence, the accused-appellant moved an application before the trial court whereby he confessed commission of the crime by himself thus did not cross examine the prosecution witness (PW1). 11. Thereafter, evidence for the prosecution was closed and statement of the accused-appellant was noted under Section 313 Cr.P.C. wherein he confessed the guilt and submitted that the contraband Charas weighing 120 gram was recovered from his possession. 12. 11. Thereafter, evidence for the prosecution was closed and statement of the accused-appellant was noted under Section 313 Cr.P.C. wherein he confessed the guilt and submitted that the contraband Charas weighing 120 gram was recovered from his possession. 12. The trial court after considering the merit of the case returned the aforesaid finding of conviction and sentenced the accused to ten years rigorous imprisonment coupled with fine Rs.50,000/, in case of default in payment of fine, he would be required to suffer additional six months imprisonment. 13. Consequently this appeal. 14. Ms. Seema Pandey, the learned amicus curiae for the appellant has contended that in this case, insofar as the point of conviction recorded by the trial court vide impugned judgment dated 25.11.2016 is concerned, she has nothing to submit on merit in view of the confession made by the accused before the trial court but she would like to submit on the point of quantum of sentence imposed by the trial court on the ground that the sentence imposed is disproportionate to the offence proved. 15. Learned amicus curiae for the appellant has succinctly submitted that in this case, the recovered quantity of Charas was admittedly 120 grams, which quantity is lesser than the commercial quantity, then proportionate sentence ought to have been imposed upon the accused-appellant considering the fact that accused-appellant had confessed the guilt and had prayed for leniency on the point of sentencing before the trial court. The sentence imposed should be proportionate to the crime committed by the accused-appellant and the basis of sentencing is the actual contraband recovered from the possession of the accused-appellant which is 120 grams of Charas. 16. Learned amicus curiae for the appellant has submitted next that looking to the aforesaid aspect of the case, it would be in the fitness of things that sentence of two years imprisonment would serve the interest of justice. The accused-appellant is a poor man, therefore, the amount of fine may be reduced to less amount. 17. Learned A.G.A. for the State has opposed the prayer for imposition of lesser sentence than the one imposed by the trial court on the ground that the accused-appellant has himself admitted to have committed the offence and the quantity of the contraband 120 grams of Charas was recovered from his possession. 17. Learned A.G.A. for the State has opposed the prayer for imposition of lesser sentence than the one imposed by the trial court on the ground that the accused-appellant has himself admitted to have committed the offence and the quantity of the contraband 120 grams of Charas was recovered from his possession. No doubt, the quantity of the recovered contraband is lesser than the commercial quantity but that would not justify lesser sentence than the one awarded by the trial court. 18. Also considered the above submissions. 19. Considering the facts and circumstances of the case and scrutinizing the entire testimony, particularly the fact that the accused-appellant has admitted to have committed the crime and no doubt, it is undisputed that the quantity of contraband recovered from possession of the accused-appellant is 120 grams of Charas, the sentence awarded by the trial court is on the face disproportionate to the crime committed in this case. Sentencing part of the judgment has nothing to do with the merit of the case but a balance of aggravating and mitigating circumstances is to be evaluated in order to impose just sentence. 20. Here if the quantity of contraband recovered would have been commercial quantity over 1000 grams of Charas then imprisonment for not less than 10 years would have been justified. But this is not the case in hand and the accused is not a previous convict. Therefore, in such cases normally sentencing should be commensurate with the quantity of the contraband recovered. It appears that the accused has made remorseful confession. Here aggravating circumstance is recovery of 120 grams of Charas, whereas, confession made without contesting the case is the mitigating circumstance standing in favour of the accused. 21. This vital aspect of the case was altogether ignored by the trial court. Therefore, imposition of sentence for 10 years rigorous imprisonment is too harsh and it cannot be approved of at this stage, hence, the sentence of 10 years rigorous imprisonment with fine Rs.50,000/imposed by the trial court is palliated to two years rigorous imprisonment coupled with fine Rs.10,000/, in case of default he would have to suffer additional two months imprisonment. 22. Accordingly, the sentencing part of the impugned judgment and order of conviction dated 25.11.2016 passed by the Additional Sessions Judge, Court No.18, Agra, in Session Trial No.16 of 2016 State Vs. 22. Accordingly, the sentencing part of the impugned judgment and order of conviction dated 25.11.2016 passed by the Additional Sessions Judge, Court No.18, Agra, in Session Trial No.16 of 2016 State Vs. Vikky son of late Kishan Lal, under Section 8/20 of N.D.P.S. Act, Police Station Shahganj, District Agra is hereby modified to the aforesaid extent and the conviction is maintained. 23. In this case, the accused-appellant is in jail since 22.12.2015 and sentence of two years rigorous imprisonment shall come to end on 21.12.2017, further two months imprisonment in default of payment of fine would also run up to 21.02.2018 which period has already undergone by the accused-appellant. Therefore, the accused-appellant shall be set at liberty forthwith unless and until he is wanted in connection with any other case. 24. The instant appeal is allowed, partly in aforesaid terms. 25. Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.