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2022 DIGILAW 690 (ALL)

Ishwar Lal Roka v. State of U. P.

2022-05-05

SURESH KUMAR GUPTA

body2022
JUDGMENT : SURESH KUMAR GUPTA, J. 1. This appeal has been filed against the judgment and order dated 20.10.2016 passed by the A.S.J. court no. 5 Bahraich in S.T. No. 14/2012 arsing out of case crime no. 645 of 2011, under Sections 8/20 NDPS Act, whereby the trial court convicted and sentenced the appellant u/s 20 NDPS Act for 10 years' rigorous imprisonment with a fine of Rs. 1 lakh and in default of payment of fine, ten months additional simple imprisonment. 2. Brief fact of the case emerges as such that on 5.12.2011 at 15.00 hours, the informer informed to the police that one Nepali person carrying charas will arrive India via Nepalganj Rupaidiha main highway from Nepal. On receiving this information, Abhinav Kashyap, Assistant Commander made Special Checking Squad comprising SSBL personnel. The special checking squad along with the informant reached the check post which was situated at Nepalganj Rupaidiha highway and started waiting for accused-appellant. At 17.00 hours on pointing out of informer, the suspected accused was intercepted for checking. Even as the accused opened the bag, he started fleeing from the spot. But the special checking squad immediately nabbed him and on asking his name and address and the reason for fleeing, he told that there is charas in his bag and further told his name Ishwar Lal Roka S/o Jam Bahadur Roka, R/o Nagarpalika Police Station Chowki Ghorahi Ward no. 10 District Dang Western Nepal, aged 41 years. On asking the reason for bringing or taking the alleged charas, the accused told that one week ago, at Weston Hospital, Nepalganj one unknown person met him and offered Indian Rs. 15,000/- for delivering a bag containing Charas to Roadways Bus stop Rupaidiha. On spot contraband article was tested by Drug Testing Kit and prima facie, the recovered contraband article was found to be charas, therefore, the accused-appellant was immediately arrested. The accused was given choice to get the recovered article checked by any officer or Magistrate. The appellant however opted his search by the checking squad himself. Accordingly, search was conducted on the spot and consent letter was signed by the accused-appellant. Bag of the accused was searched. It was found that a box containing charas, Indian Rs. 2,500/- and a Samsung Mobile. Then, the information regarding arrest of the accused-appellant was given by the police authority to his wife Lal Kumari. Accordingly, search was conducted on the spot and consent letter was signed by the accused-appellant. Bag of the accused was searched. It was found that a box containing charas, Indian Rs. 2,500/- and a Samsung Mobile. Then, the information regarding arrest of the accused-appellant was given by the police authority to his wife Lal Kumari. On weighing by the scale available there, the recovered charas was 5 kg and 238 gms. Out of which, 25-25 gms charas was separately sealed for sample and the remaining charas was sealed in another packet. The accused was brought to the police station-Rupaidiha, where the case under section 8/20 of NDPS Act was registered as case crime no. 645 of 2011. 3. After investigation, charge-sheet was submitted against the accused-appellant before sessions court, Bahraich. This case was transferred to the Special Judge, court no. 4, Bahraich, where the charge was framed. The accused-appellant pleaded not guilty of the charges levelled against him and he contended that he was falsely implicated in this case and claimed to be tried. 4. In order to prove its case, the prosecution examined PW-1 Sonam; PW-2 Abhinav Kashyap, complainant; PW-3 Umesh Kumar Bhardwaj. 5. The trial court on the basis of evidence adduced by the prosecution held that the prosecution succeeded to prove the charge against the appellant. It was also held that all the procedural technicalities were complied with. Thus, the trial court convicted the appellant for possessing the contraband article Charas weighing 5 kg and 238 gms from his possession and sentenced the appellant as aforesaid. 6. Being aggrieved and dissatisfied with the aforesaid order, the appellant preferred this appeal before this Court. 7. I have heard learned counsel for the parties and perused the record. 8. Submission of the counsel for the appellant is that the finding given by the trial court is perverse and bad in the eye of law. There are major contradictions in the statement of the witness. He has also submitted that there is no independent witness examined by the prosecution. All the witnesses shown in the recovery memo is false and concocted and there was non-compliance of the mandatory provision of NDPS Act at the time of search and seizure. It was not told to the appellant that he has right to be searched before the Gazetted officer or magistrate. All the witnesses shown in the recovery memo is false and concocted and there was non-compliance of the mandatory provision of NDPS Act at the time of search and seizure. It was not told to the appellant that he has right to be searched before the Gazetted officer or magistrate. Thus, there was also non-compliance of Sections 50, 56 and 57 of NDPS Act. 9. The counsel for the appellant further argued that the appellant was neither in possession of any narcotics nor any incriminating article recovered from his possession. 10. Lastly, the counsel for the appellant submits that the appellant has no previous criminal history and he is languishing in jail since 5.12.2011. The appellant has already undergone the sentence of 10 years as awarded by the trial court. Since he is not able to pay the fine of Rs. 1 lakh as aforesaid. So, in default of the same, the appellant shall undergo for 10 months' additional simple imprisonment as awarded by the trial court. Therefore, the counsel submits that liberal view may be taken against the appellant and the appellant be released forthwith as he already remained in incarceration about 10 years and 5 months. 11. Learned AGA opposed and submitted that all the procedure literally complied by the arresting officer at the time of search. He further contended that provision of Cr.P.C. makes it clear that the court of law can award imprisonment in default of payment of fine, one fourth of the term of the imprisonment which the court is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine. Thus, in this case, in default of payment of fine, the court is competent to award 2 years and 6 months in addition to substantive sentence. However, the trial court already taking liberal view awarded 10 months' additional simple imprisonment in default of payment of fine, which could not be said to be unlawful or otherwise illegal. Thus, the appeal deserves to be dismissed. 12. Insofar as conviction recorded by the trial court is concerned, there is no illegality, irregularity or perversity in the impugned order passed by the trial court. The appellant has already undergone substantial part of sentence of 10 years rigorous imprisonment and in default of payment of fine, he has already spent 5 months in jail. 13. 12. Insofar as conviction recorded by the trial court is concerned, there is no illegality, irregularity or perversity in the impugned order passed by the trial court. The appellant has already undergone substantial part of sentence of 10 years rigorous imprisonment and in default of payment of fine, he has already spent 5 months in jail. 13. The counsel for appellant has relied upon the judgment of the Apex Court in Shanti Lal vs. State of M.P. decided on 8.10.2007. The relevant portion of which is reproduced hereunder: “36. We are mindful and conscious that the present case is under the NDPS Act Section 18 quoted above provides penalty for certain offences in relation to opium poppy and opium. Minimum fine contemplated by the said provision is rupees one lakh [fine which shall not be less than one lakh rupees]. It is also true that the appellant has been ordered to undergo substantive sentence of rigorous imprisonment for ten years which is minimum. It is equally true that maximum sentence imposable on the appellant is twenty years. The learned counsel for the State again is right in submitting that clause (b) of sub-section (1) of Section 30, Cr.P.C. authorizes the Court to award imprisonment in default of payment of fine up to one-fourth term of imprisonment which the Court is competent to inflict as punishment for the offence. 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. 37. For the reasons aforesaid, the appeal is partly allowed, conviction recorded and sentence imposed on the appellant to undergo rigorous imprisonment for ten years is confirmed. An order of payment of fine of rupees one lakh is also upheld. But an order that in default of payment of fine, the appellant shall undergo rigorous imprisonment for three years is reduced to rigorous imprisonment for six months. To that extent, the appeal filed by the appellant is allowed. If the appellant has undergone substantive sentence of rigorous imprisonment for ten years as also rigorous imprisonment for six months as modified by us in default of payment of fine, the appellant shall be set at liberty forthwith unless he is required in any other offence. If the appellant has not completed the said period, he will be released after the period indicated hereinabove is over. The appeal is accordingly disposed of.” 14. Considering the aforesaid and the law propounded by the apex court, I am of the view that 10 months' additional simple imprisonment is reduced to 5 months' simple imprisonment. Thus, the appeal is partly allowed. 15. If the appellant has undergone substantive sentence of rigorous imprisonment for ten years as also simple imprisonment of five months as modified by this Court in default of payment of fine, the appellant be set at liberty forthwith unless he is required in any other offence. 16. Thus, the appeal is dismissed on the point of conviction and partly allowed on the point of sentence. 17. Office is directed to communicate this order to the court concerned and send back the lower court record, if already received.