Research › Search › Judgment

Allahabad High Court · body

2021 DIGILAW 81 (ALL)

Ram Teerth v. State of U. P.

2021-01-18

AJIT SINGH

body2021
JUDGMENT : AJIT SINGH, J. 1. The instant appeal has been preferred against the impugned judgment and order dated 19.06.2008 passed by the Additional Sessions Judge/Fast Track Court, Court No. 2, Siddharth Nagar in Special Sessions Trial No. 11 of 2008 (State Versus Ram Teerth) arising out of Case Crime No. 11 of 2008, Police Station Dhebrua, District Siddharth Nagar whereby the appellant has been convicted under Section 20(b)(ii)(c) of N.D.P.S. Act and has been sentenced to undergo 12 years rigorous imprisonment with a fine of Rs. 1,20,000/-. In default of payment of fine, he has to undergo three years additional rigorous imprisonment. 2. Heard Sri. Ravindra Balkrishna Kanhere, learned counsel for the appellant as Amicus Curiae as well as learned A.G.A. for the State. 3. Learned counsel for the appellant has argued on merits but later on confined his arguments on the quantum of sentence as the appellant has already served the sentence awarded to him by the trial court and at present he is in jail in default of fine. According to the prosecution itself, he was arrested by the police on 11.01.2008 and is continuously in jail since the date of his arrest i.e. 11.01.2008. It is further stated that since the appellant has already undergone substantive period of sentence imposed upon him by the trial court, now his prayer is confined only for reduction of remaining period of imprisonment and the period which he has to undergo in default of payment of fine for a period of three years' additional rigorous imprisonment. In this behalf, it has been submitted that since higher than minimum punishment prescribed under N.D.P.S. Act upon the conviction under Section 20(b)(ii)(c) of N.D.P.S. Act has been awarded by the trial court to the appellant without assigning special reason and without even adverting Section 32(B) of N.D.P.C. Act, the sentence imposed by the trial court of 12 years rigorous imprisonment cannot be sustained. 4. Learned counsel for the appellant has submitted that the appellant is a very poor person and even during trial there was none to do proper pairvi on his behalf on account of financial constraint. Therefore, he is unable to deposit the heavy amount of fine imposed upon him by the trial court. It is stated that only on account of poverty, he has to undergo three years additional rigorous imprisonment in default of payment of fine. 5. Therefore, he is unable to deposit the heavy amount of fine imposed upon him by the trial court. It is stated that only on account of poverty, he has to undergo three years additional rigorous imprisonment in default of payment of fine. 5. Learned A.G.A. has opposed the aforesaid prayer of the learned counsel for the appellant. 6. I have considered the rival submissions made by learned counsel for the parties and perused the impugned judgment and order. 7. The issue which next arises for consideration is that whether the sentence awarded to the appellants which is higher than the minimum sentence prescribed under the Act for a person convicted under Sections 20(b)(ii)(c) of N.D.P.S. Act of the NDPS Act is unduly harsh, excessive disproportionate and arbitrary and the same has been imposed, without assigning any reasons and without taking into consideration of provisions of Section 32(B) of the NDPS Act and hence liable to be modified. The minimum punishment prescribed for conviction under Section 20(b)(ii)(c) of N.D.P.S. Act is 10 years R.I. And a fine of Rs. 1 lakh. Section 32(B) of the NDPS Act enumerates the factors to be taken into account for imposing higher than the minimum punishment. It will be useful to reproduce Section 32(B) of the NDPS Act herein-below: “32B. Factors to be taken into account for imposing higher than the minimum punishment. Where a minimum term of imprisonment or amount of fine is prescribed for any offence committed under this Act, the court may, in addition to such factors as it may deem fit, take into account the following factors for imposing a punishment higher than the minimum term of imprisonment or amount of fine, namely: (a) the use or threat of use of violence or arms by the offender. (b) the fact that the offender holds a public office and that he has taken advantage of that office in committing the offence. (c) the fact that the minors are affected by the offence or the minors are used for the commission of an offence. (d) the fact that the offence is committed in an educational institution or social service facility or in the immediate vicinity of such institution or faculty or in other place to which school children and students resort for educational, sports and social activities. (d) the fact that the offence is committed in an educational institution or social service facility or in the immediate vicinity of such institution or faculty or in other place to which school children and students resort for educational, sports and social activities. (e) the fact that the offender belongs to organised international or any other criminal group which is involved in the commission of the offences. (f) the fact that the offender is involved in other illegal activities facilitated by commission of the offence.” 8. After going through the impugned judgment and order very carefully, I find that the trial court while imposing higher than the minimum punishment prescribed under the NDPS Act on conviction under Section 20(b)(ii)(c) of N.D.P.S. Act of the NDPS Act, upon the appellant has failed even to advert to the factors enumerated in Section 32(B) of the NDPS Act. In fact no reason whatsoever is forthcoming in the impugned judgment which lead the trial court to impose higher than the minimum punishment prescribed under the Act upon the appellant. 9. The learned counsel has placed reliance on the law laid down by the Hon'ble Apex in Shanti Lal vs. State of M.P. (2008) 1 SCC (Cri) 1 in which the Hon'ble Apex Court, almost under the similar circumstances, has reduced the sentence awarded to the accused-appellant in default of payment of fine from three years to six month by observing as under:- “But considering the circumstances placed before us on behalf of the appellant-accused that he is very poor; he is merely a carrier; he has to maintain his family; it was his first offence; because of his poverty, he could not pay the heavy amount of fine (rupees one lakh) and if he is ordered to remain in jail even after the period of substantive sentence is over only because of his inability to pay fine, serious prejudice will be caused not only to him, but also to his family members who are innocent. We are, therefore, of the view that though an amount of payment of fine of rupees one lakh which is minimum as specified in Section 18 of the Act cannot be reduced in view of the legislative mandate, ends of justice would be met if we retain that part of the direction, but order that in default of payment of fine of rupees one lakh, the appellant shall undergo rigorous imprisonment for six months instead of three years as ordered by the trial court and confirmed by the High Court.” 10. A perusal of the record shows that the appellant was arrested by the police on 11.01.2008. During trial he is continuously in jail because no order has been passed on his bail application filed before this court alongwith this appeal. 11. Thus, it is clear that the appellant has undergone 12 years of his sentence and period of rigorous imprisonment for three years in default of payment of fine may be reduced. 12. Taking into account the totality of the facts and circumstances of the case and relying on the law laid down by Hon'ble Apex Court in the above cited Shanti Lal's case, period of sentence of 12 years' rigorous imprisonment has already undergone by him and the period of imprisonment for three years in default of payment of fine is reduced to the period of six months imprisonment. 13. Accordingly, the appeal is partly allowed. The appellant shall be released after the period of sentence as indicated herein above, is over. 14. The seized contraband shall be destroyed by the officer concerned in accordance with the notifications issued under Section 52A of The Narcotic Drugs and Psychotropic Substances Act. 15. Let a copy of this judgment and order be sent to the court below within a week for ensuring its compliance. 16. The registry is directed to pay Rs. 10,000/- to the learned counsel for the appellant/Amicus Curiae as counsels fee without any delay and, in any case, within one month from the date of receipt of copy of this judgment.