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Himachal Pradesh High Court · body

2020 DIGILAW 578 (HP)

State of H. P. v. Fukunaga

2020-09-08

SURESHWAR THAKUR

body2020
JUDGMENT : Sureshwar Thakur, J. 1. Heard, on, maintainability, of, the extant appeal. 48 grams of opium, and, 475 grams of cannabis/charas, became respectively recovered from the purported conscious, and, exclusive possession, of, the accused/convict/respondent herein, at about 11.10 p.m. on 4th September, 2016 at place Temporary Check Post, Bajaura, District Kullu, Himachal Pradesh. The Investigating Officer concerned, after completion of all the investigations, had, in consonance with the afore recoveries hence made from the exclusive, and, conscious possession of the accused/convict/respondent herein, forwarded a report, under, Section 173 of the Code of Criminal Procedure to the learned Special Judge concerned. However, the accused, depended upon Chapter-XXIA of the Code, of, Criminal Procedure, and, specifically upon, the encapsulated therein, mandate appertaining, to, "plea bargaining", and, the learned Special Judge concerned, proceeded to accept the afore plea, (a) and, through an order made on 01.04.2019, he sentenced the convict to undergo imprisonment for a period, of, two months, and, to pay a fine of Rs. 5000/-, and, in default of payment of fine, the convict stood sentenced, to, further undergo imprisonment, for, one week hence for commission, of, an offence punishable under Section 18 of the NDPS Act. He was further sentenced to undergo imprisonment, for, a period of two months, and, twenty six days, and, to pay a fine of Rs. 20,000/- for commission, of, offence(s) punishable under Section 20 of the NDPS Act, and, in default of payment of fine, he stood sentenced to undergo imprisonment, for, one week. 2. The State of Himachal Pradesh, is, aggrieved by the afore minimal sentence(s) of imprisonment, besides, of, fine(s), as, become imposed, upon, the accused/convict, through, a verdict made on 01.04.2019 by the learned Special Judge concerned. Consequently, the afore purported minimal sentence(s) of imprisonment(s), and, of, fine(s) become challenged, through, an appeal being constituted, under, Section 377, of, the Code of Criminal Procedure. 3. The learned counsel appearing for the accused/convict/respondent herein, makes a submission before this Court, that, the extant appeal, constituting thereunders, the afore challenge, is not maintainable before this Court, rather the remedy available, for, casting an onslaught thereto, is, through instituting there against, hence, a writ petition. For resting his afore submission, he has depended, upon, the provisions, borne in Section 265 (F), and, in Section 265 (G) of the Code, of, Criminal Provisions, provisions whereof stand(s) extracted hereinafter:- "265F. For resting his afore submission, he has depended, upon, the provisions, borne in Section 265 (F), and, in Section 265 (G) of the Code, of, Criminal Provisions, provisions whereof stand(s) extracted hereinafter:- "265F. Judgment of the Court.-The Court shall deliver its judgment in terms of section 265E in the open Court and the same shall be signed by the presiding officer of the Court. 265G. Finality of the judgment.-The judgment delivered by the court under section 265G shall be final and no appeal (except the special leave petition under Article 136 and writ petition under articles 226 and 227 of the Constitution) shall lie in any Court against such judgment. The afore made submission, by the learned counsel appearing, for, the accused/convict, is not amenable, for, being countenanced by this Court, as, it is based, upon, a, thorough misreading of the apposite thereto rather governing, and, regulating provisions, as, become borne in clause (a), of, sub-section (1) to Section 265A, of, the Code of Criminal Procedure, provisions whereof stand extracted hereinafter: "265A. Application of the Chapter. This Chapter shall apply in respect of an accused against whom-- 1. the report has been forwarded by the officer in charge of the police station under section 173 alleging therein that an offence appears to have been committed by him other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years "has been provided under the law for the time being in force; or" 2. a Magistrate has taken cognizance of an offence on complaint, other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years, has been provided under the law for the time being in force, and after examining complainant and witnesses under section 200, issued the process under section 204, but does not apply where such offence affects the socio-economic condition of the country or has been committed against a woman, or a child below the age of fourteen years." (a) whereins rather, the, applicability of the apposite chapter, appertaining to the validity of raisings, of, the statutorily mandated "plea bargaining", hence arising, from, cognizance being made, upon, a police report, as, hence becomes assumed hereat, (b) is, enshrined to become statutorily well rested, only upon, the accused being made to face, a, charge for apposite penal offences, (c) excepting offences qua wherewith, the, apposite prescribed imposable punishment, is, of death or imprisonment for life or imprisonment for a term exceeding seven years. Bearing in mind, the afore mandate, as, borne in clause (a), of, sub-section (1), to, Section 265A, hence, borne in Chapter XXIA of the Cr.P.C., and, appertaining to the statutorily mandated "plea bargaining", and, with the afore sub-section governing, and, regulating, all the thereafter occurring provisions, in the afore chapter, (d) thereupon, unless the charged offence(s) mandate, vis-a-vis, the convict being imposed, upon, punishment rather other than his being amenable, to become sentenced, to, capital punishment or for imprisonment for life or for imprisonment, for, a term exceeding seven years, (e) thereupon, alone, the mandate of all the statutory provisions, as, borne in Chapter XXIA of the Cr.P.C., would become applicable, vis-a-vis, the accused/convict, (f) thereupon, also naturally, the finality of the sentence, of, imprisonment(s), as, become pronounced by the learned Special Judge, upon, the latter, accepting the raised there before, hence by the convict, espousal, of, "plea bargaining", rather would assume vigour or would assume, the, assigned statutory signification. (g) Necessarily also the challenge there against, through, an appeal cast under Section 377 of the Cr.P.C., would become statutorily barred. (g) Necessarily also the challenge there against, through, an appeal cast under Section 377 of the Cr.P.C., would become statutorily barred. The import, of, the underlined phrase borne in clause (a) to sub-section (1) of Section 265A, of, the Cr.P.C., necessarily containing therein, expostulation(s) qua its workability, becoming hence visibly sparked, (h) is, fathomable not from the sentence of imprisonment imposed, vis-a-vis, the charged offences, upon, the accused/convict, hence by the Court concerned, rather is gaugeable, from, the prescription(s), of, imposable sentence(s), of, imprisonment qua therewith, hence, borne in the relevant penal statute, (i) inasmuch, as, the latter encapsulating, a, mandate, vis-a-vis, the imposable sentence(s), of, imprisonment, upon, the convict, rather not exceeding seven years, or the relevant penal statute, not, mandating the imposition, of, capital punishment or of life imprisonment, upon, the accused/convict, vis-a-vis, the charged offences. The afore parlance, is, marshalled, from, the existence, of, the statutory phrase, "has been provided under the law for the time being in force", as, exists hence subsequent to the afore hence statutory fettering rather borne in clause (a) of sub-section (1) to Section 265A of the Cr.P.C., against, the, operation, of, the apposite Chapter, vis-a-vis, the, afore sentence(s), of, imprisonment, imposable, upon, the convict. 4. Since, Section 21 of the NDPS Act, vis-a-vis, intermediate quantity(ies) of contraband(s), as evidently stand recovered, from, the exclusive, and, conscious possession of the accused/convict, warrant imposition, of, sentence, of imprisonment, upon, the accused/convict, hence, for a period exceeding seven years, thereupon, with clause (a), of, sub-section (1) of Section 265A of the Cr.P.C., mandating, vis-a-vis, the application, of, Chapter XXIA, making emergence(s) or working(s), vis-a-vis, the accused, (b) unless, any, prohibitive apposite reliance(s) untenably made thereon, by the accused, hence becoming sparked, upon, the afore charged offence(s) warranting imposition, of, sentence, of, imprisonment, for, terms exceeding seven years. Even, if, vis-a-vis, the charged offences, the NDPS Act, though, prescribe(s) imposition, of, punishment, of, imprisonment, hence, upto, 10 years, period/tenure whereof, is, obviously more than 7 years, (c) and, also even if, more than seven years, of punishment, of, imprisonment, is imposable, upon, the convict, besides even if, a lesser than seven years, of, imprisonment can become imposed, upon, the convict, nonetheless as afore inferred, the operation(s), of, the afore Chapter, vis-a-vis, the convict, is not gaugeable, from, the term, of, the imposed sentence, of, imprisonment, upon him, rather, is, fathomable, from, the imposable sentence, of, imprisonment upon him, term whereof, vis-a-vis, the charged offences hereat, is, forthrightly beyond the prohibitive term rather beyond seven years, (i) hence, the State of Himachal Pradesh, is, validly aggrieved, from, the purported minimal sentence, of, imprisonment, and, of, fine, as becomes imposed, upon, the accused/convict, by the learned Special Judge concerned, through, a verdict hence made, on 01.04.2019. 5. The learned counsel, appearing for the accused/convict/respondent herein, has submitted before this Court, that given clause (c), and, clause (d) of Section 265E of the Cr.P.C., provisions whereof stand extracted hereinafter:- "265E. 5. The learned counsel, appearing for the accused/convict/respondent herein, has submitted before this Court, that given clause (c), and, clause (d) of Section 265E of the Cr.P.C., provisions whereof stand extracted hereinafter:- "265E. Disposal of the case.-Where a satisfactory disposition of the case has been worked out under section 265D, the Court shall dispose of the case in the following manner, namely; (a) the Court shall award the compensation to the victim in accordance with the disposition under section 265D and hear the parties on the quantum of the punishment, releasing of the accused on probation of good conduct or after admonition under section 360 or for dealing with the accused under the provisions of the Probation of Offenders Act, 1958(20 of 1958) or any other law for the time being in force and follow the procedure specified in the succeeding clauses for imposing the punishment on the accused; (b) after hearing the parties under clause (a), if the Court is of the view that section 360 or the provisions of the Probation of Offenders Act, 1958(20 of 1958) or any other law for the time being in force are attracted in the case of the accused, it may release the accused on probation or provide the benefit of any such law, as the case may be; (c) after hearing the parties under clause (b), if the Court finds that minimum punishment has been provided under the law for the offence committed by the accused, it may sentence the accused to half of such minimum punishment; (d) in case after hearing the parties under clause b), the Court finds that the offence committed by the accused is not covered under clause b) or clause c), then, it may sentence the accused to one-fourth of the punishment provided or extendable, as the case may be, for such offence." empowering the court concerned to impose, minimum punishment, as becomes provided, under, the relevant penal statute, vis-a-vis, the charged offence or it also empowering the court concerned, to, upon, any charged offence not becoming covered within clause (c) thereof, and, hence to within clause(d) thereof, rather, impose, upon, the accused/convict 1/4th punishment providable or extendable, vis-a-vis, the charged offence, (i) thereupon, he submits that with Section 20, of, the NDPS Act, permitting, vis-a-vis, the hereat intermediate quantity, of, contrabands, as, became recovered, from, the exclusive and conscious possession, of, the accused/convict/respondent herein, rather the learned trial court, to, pronounce sentences, of imprisonment, upon him, for tenure(s)/term(s) lesser than the upper statutorily prescribed limits thereof, (ii) thereupon, the mandate of clause (a) of sub-section (1), of, Section 265A of the Cr.P.C., becoming denuded or whittled down, vis-a-vis, its requisite effect, and, whereupon(s), also the extant criminal appeal constituted, under, Section 377 of the Cr.P.C., seeking there through enhancement(s), of, term(s) of imprisonment, beyond the one hence imposed, upon, the accused/convict, obviously becoming mis-constituted, (iii) and, rather the apposite remedy available to the State, is, to make, a, challenge thereon, rather, through, its instituting a writ petition there against, before the writ Court. However, the afore submission, as, addressed before this Court, by the learned counsel appearing for the accused/convict, is, rudderless, as, he has not gauged the import of sub-section(1), as, occurs in Section 265 of the Cr.P.C., which rather opens, with, the phrase "shall apply in respect, of, an accused against whom" charges are drawn, excepting, vis-a-vis, those penal offence(s), hence, prescribing capital punishment, or of life imprisonment or of imprisonment, for, a term exceeding seven years. The play, and, workability, of, the afore phrase, occurring, in, the opening, of, Section 265A of the Code of Criminal Procedure, does restrict, the operation of Chapter-XXIA, encapsulating therein, the, mandate, of, "plea bargaining" only, vis-a-vis, those offences, falling within the ambit of clause (a), of, sub-Section(1), (iv) inasmuch, as, vis-a-vis, those offence(s) qua wherewith, hence, reiteratedly, sentence, of, imprisonment, other than, the afore statutorily excluded or excepted, are imposable, upon, the convict. Conspicuously, since, Section 20, of, the NDPS Act, hence prescribes, vis-a-vis, any intermediate quantity of contraband(s), as, evidently stand(s) recovered from the exclusive, and, conscious possession, of, the accused/convict, hence, imposable punishment/imprisonment, exceeding beyond seven years, inasmuch, as, upto 10 years, thereupon, the mandate, of, clause (c) and, clause (d) of Section 265E, has, to be read alongwith, the, afore statutory restrictions imposed, in, Section 265-A of the Cr.P.C. against valid availability, of, raising, of, "Plea Bargaining", by the accused. Moreover, the operation, and, play of clause (c) and (d) of Section 265E, would be validly galvanisable, only upon, the, relevant penal statute, prescribing imposable sentence(s), of, imprisonment, for, a term lesser than seven years, and, not otherwise. Concomitantly also the mandate of Section 265F, and, Section 265G of the Cr.P.C., is, applicable, vis-a-vis, those charged offences prescribing imposable sentence(s), of, imprisonment, rather for, a period lesser than seven years. Contrarily, the, imposable sentence(s), of, imprisonment, as, become(s) prescribed, vis-a-vis, the charged offences hereat, is, more than seven years, thereupon, the mandate borne in Section 265F, and, Section 265G, is, not hereat applicable, nor as contended by the learned counsel appearing for the accused, the remedy available, for, challenging the imposition(s), of, purported minimal sentence(s), of imprisonment, and, of fine, upon, the accused/convict, is, not through, a, writ petition, rather, is, through, the, institution, of, the extant appeal, before this Court. Admitted. Call for the records.