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2018 DIGILAW 2829 (MAD)

RAJA v. STATE

2018-09-07

N.SATHISH KUMAR

body2018
JUDGMENT : N.SATHISH KUMAR, J. 1. The appellant / sole accused in C.C.No.449 of 2007 on the file of the Additional District Sessions cum Special Court for N.D.P.S. cases, Madurai, was charge sheeted and convicted for the offence under Section 8(c) read with Section 20(b)(II)(b) of Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS Act'). The trial Court, by its judgment dated 28.12.2007, convicted him to undergo rigorous imprisonment for four years and to pay a fine of Rs. 2,000/-, with the default sentence of six months rigorous imprisonment. Aggrieved over the same, the present appeal is filed. 2. The fact of the case is that the appellant / accused was in possession of two kilograms of Kanja and was arrested by the Inspector of Police, Narcotic Crime Bureau, Theni, on 05.06.2007, at about 09.30 pm and accordingly, he was charge sheeted. While framing the charges, the appellant / accused pleaded guilty. Based on the same, the trial Court convicted the appellant / accused under Section 8(c) read with Section 20(b)(II)(b) of NDPS Act, against which, the present appeal has been filed. 3. Mr.G.Karuppasamy Pandian, learned legal aid Counsel appointed by this Court defend the appellant / accused and submitted that the charge framed against the appellant / accused is grave in nature. The trial Court, without giving reflection of time and without any materials, used its discretion mechanically. The trial Court ought not to have proceeded to convict the appellant / accused without directing the prosecution to prove all the charges and submitted that the entire process of the trial Court is vitiated in view of the judgment of this Court in the decision (in the case of Gopal v. Inspector of Police, Machinakudi Police Station, Koodalur, Nilgiris District, (2016) 4 MadLJ(Cri) 378) and an unreported decision of this Court in Criminal Appeal (MD)No.171 of 2008, dated 10.03.2015, in the case of Chithira v. Inspector of Police, B-7, Thideer Nagar (L & O) Police Station, Madurai City. 4. The Division Bench of this Court in (2016) 4 MLJ (Crl) 378 has held as follows: "14. In the Constitution of India, several provisions have been enshrined for the purpose of ensuring the dignity of the individual and providing for his material, moral and spiritual development. These provisions would be meaningless and ineffectual unless there is rule of law to invest them with life and force. In the Constitution of India, several provisions have been enshrined for the purpose of ensuring the dignity of the individual and providing for his material, moral and spiritual development. These provisions would be meaningless and ineffectual unless there is rule of law to invest them with life and force. What is the necessary element of the rule of law is that the law must not be arbitrary and irrational and it must satisfy the test of reasons. Article 21 is the heart of all these provisions which guarantees dignified life and personal liberty. It mandates that no person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by law or in its converse positive form, a person may be deprived of his life or personal liberty in accordance with fair, just and reasonable procedure established by a valid law. Unfortunately, the discretion vested in the court under Section 229 of the new Code is in tune with Article 21 of the Constitution of India to ensure a fair trial to an accused. Section 229 of the new Code, of course, makes it mandatory that if the accused pleads guilty, the Court shall record the said plea. If once it is so recorded, the latter part of Section 229 of the new Code makes it undoubtedly clear that in its discretion, the court may convict the accused thereon. How the discretion should be exercised by the court has not been defined or no guidelines have been formulated by the legislature. The exercise of such undefined discretion is always more difficult and uncertain. It is left to the Judge to grope in the dark for himself and in the exercise of his unguided and unfettered discretion decide what reasons may be considered to use his discretion justifying conviction. What may appear to be the reasons justifying for conviction of an accused on the plea of guilty for one judge, may be found either unreasonable or insufficient to convict him on the plea of guilty, to the another judge. Thus, in the absence of any expected legislative policy guiding the said discretion under Section 229 of the new Code, it is for the judges to be guided by the judge-made laws and by using their judicial prudence. 15. Thus, in the absence of any expected legislative policy guiding the said discretion under Section 229 of the new Code, it is for the judges to be guided by the judge-made laws and by using their judicial prudence. 15. In our considered view, in this scenario, before acting solely on the plea of guilty, essentially, the court should be fully satisfied that the accused had understood the nature of the charge levelled against him. A common man, more particularly, an illilterate poor man hailing from a remote corner of this country, may not know what the offence of murder in the context of the Indian Penal Code is. It is the common man's understanding that killing of a human being by another is a murder. The vast majority of people of this country do not know as to when a homicide amounts to a culpable homicide; when culpable homicide amounts to a murder and when the special exceptions appended to Section 300 of IPC would reduce the offence again into a culpable homicide. Similarly, the accused may not know as to whether his act would fall under anyone of the general exceptions. He may not know whether the death was directly due to the violence caused by him or due to some other natural cause. Whether the offence committed by the accused is a mere culpable homicide or murder requires a deep analysis of the background of the entire occurrence. The accused may not know those backgrounds which actually may make out the difference between culpable homicide not amounting to murder and murder. Going by his common understanding that killing a person is a murder, when he is questioned under Section 228 of the new Code, he may plead guilty. When an accused, without knowing these nuances, pleads, guilty, there is a danger of conviction for him for an offence that he has not committed. Similarly in the matter of sentencing also, vast discretion has been given to the court. For proper exercise of this discretion, the mitigating as well as aggravating circumstances which would guide the court to decide about the proportionate sentence for the offence committed are to be placed before the court. The mitigating circumstances may not be brought on record when the court simply acts upon the plea of guilty. For proper exercise of this discretion, the mitigating as well as aggravating circumstances which would guide the court to decide about the proportionate sentence for the offence committed are to be placed before the court. The mitigating circumstances may not be brought on record when the court simply acts upon the plea of guilty. Thus, without judging the proportionate quantum of sentence to be imposed, if disproportionate sentence is imposed upon the accused by the court, it may amount to injustice." 5. Similarly, in Criminal Appeal (MD)No.171 of 2008 , this Court has held as follows: "9. It is pointed out by the learned Amicus Curiae that the appellant/accused is a lady and she is a semi-literate and she is not even able to put her signature properly and, therefore, it is obligatory on the part of the Trial Court to verify as to whether the mandate under the above said provisions of the NDPS Act, have been complied with by the prosecution or not. But, unfortunately, the Trial Court as well as the learned counsel appearing for the appellant/accused therein have failed to discharge their duties property and prays for interference. 10. This Court finds considerable force in the submission made by the learned Amicus Curiae. The prosecution has filed to produce any material to show as to the compliance of Section 42(2), 50 and 57 of NDPS Act and it is under mandate as per the provisions of the above said Act to comply with the same. The appellant / accused, being a semi-literate, seems to have been given a wrong advice by the counsel appearing for her and she pleaded guilty to the charges framed against her. The Trial Court, before imposing the sentence, ought to have put the appellant / accused on notice as to the quantum of sentence, but it has failed to do so and has inflicted a severe sentence of four years rigorous imprisonment with the default sentence, though, finds, it is a small quantity. 11. In the absence of any materials placed by the prosecution, the conviction and sentence awarded by the Trial Court against the appellant / accused for the commission of the above said offence, in the considered opinion of the Court, warrants interference." 6. In the present case on hand also, the trial Court, based on mere oral submission pleading guilty, imposed the sentence without any materials. In the present case on hand also, the trial Court, based on mere oral submission pleading guilty, imposed the sentence without any materials. Admittedly, the charges are very serious in nature, which will invite punishment upto ten years and therefore, the trial Court should have exercised the discretion legally, keeping in mind the rights guaranteed under Article 21 of the Constitution of India. How the discretion should be exercised by the Court has not been defined or no guidelines have been formulated by the legislature. In a grave crime like this, the trial Court, while exercising such discretion, should satisfy itself that the charges are plain unambiguous and understood by the appellant / accused properly. In this regard, in the judgment reported in (2016) 4 MLJ (Crl) 378, it has been held as follows: "20. The Hon'ble Supreme Court in State of Maharashtra v. Sukhdeo Singh, (1992) CriLJ 3454 : "Where the Judge frames the charge, the charge so framed has to be read over and explained to the accused and the accused is required to be asked whether he pleads guilty of the offence charged or claims to be tried. Section 229 next provides that if the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon. The plain language of this provision shows that if the accused pleads guilty, the Judge has to record the plea and thereafter decide whether or not to convict the accused. The plea of guilt tantamounts to an admission of all the facts constituting the offence. It is, therefore, essential that before accepting and acting on the plea the Judge must feel satisfied that the accused admits facts or ingredients constituting the offence. The plea of the accused must, therefore, be clean, unambiguous and unqualified and the Court must be satisfied that he has understood the nature of the allegations made against him and admits them. The Court must act with caution and circumspection before accepting and acting on the plea of guilt. Once these requirements are satisfied, the law permits the Judge trying the case to record a conviction based on the plea of guilt. If, however, the accused does not plead guilty or the learned Judge does not act on his plea, he must fix a date for the examination of the witnesses, ie., the trial of the case. Once these requirements are satisfied, the law permits the Judge trying the case to record a conviction based on the plea of guilt. If, however, the accused does not plead guilty or the learned Judge does not act on his plea, he must fix a date for the examination of the witnesses, ie., the trial of the case. There is nothing in this Chapter which prevents the accused from pleading guilty at any subsequent stage of the trial. But before the trial Judge accepts and acts on that plea, he must administer the same caution unto himself. This plea of guilt may also be put forward by the accused in his statement recorded under Section 313 of the Code." These judgments have given sufficient guidelines as to how a judge should exercise his discretion under Section 229 of the new Code, when the accused pleads guilty. In the instant case, a perusal of the records, including the judgment of the trial Court, would reveal that the learned trial Judge had not explained to the accused, the ingredients of the offence and the other circumstances which may be relevant for deciding the quantum of sentence. In our considered view, the trial judge, in the instant case, ought not to have acted on the plea of guilty and instead, she ought to have proceeded with the trial of the case. As has been held by the Hon'ble Supreme Court, while the accused is questioned under Section 313 of Cr.P.C. his plea of guilty as recorded under Section 229 of the new Code shall also be put to him so that he could explain under what circumstances, he made such a plea and that may also be one of the circumstances to be taken into account by the court while deciding the issue whether the accused had committed the offence charged or not. In simple terms, we regret to say that the learned trial Judge, in the instant case, had exercised her discretion not judiciously, but, unconstitutionally in an arbitrary manner..." 7. In simple terms, we regret to say that the learned trial Judge, in the instant case, had exercised her discretion not judiciously, but, unconstitutionally in an arbitrary manner..." 7. In view of the above settled principle and also taking note of the submission of the learned legal aid Counsel for the appellant / accused that the quantum of sentence was not put forth before the appellant / accused, this Court is of the view that the trial Court has mechanically imposed the conviction and thus, the fair trial procedure has not been followed. When there is a violation of the fair trial contemplated under Article 21 of the Constitution of India, one cannot be deprived of life and personal liberty mechanically. In the above context, the judgment of the trial Court suffers legally and the same is liable to be set aside. 8. In the result, the Criminal Appeal is allowed and the conviction and sentence passed by the learned Additional District Sessions Judge cum Special Judge for N.D.P.S. cases, Madurai, in C.C.No.449 of 2007, dated 28.12.2007, are set aside. The appellant / accused is acquitted of the charges levelled against him. Fine amount, if any paid, shall be refunded. The appellant / accused is directed to be set at liberty forthwith, if he is not required for detention in connection with any other case. 9. The High Court Legal Services Committee, attached to the Madurai Bench of Madras High Court, is directed to pay the remuneration, as per norms, to the learned legal aid Counsel for his service.