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2023 DIGILAW 258 (HP)

State of Himachal Pradesh v. Fukunaga Gun

2023-05-11

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. By way of instant appeal, the appellant-State has assailed the sentence imposed upon convict/respondent by learned Special Judge-II, Kullu, H.P. vide order dated 01.04.2019 passed in Sessions Trial No. 10 of 2017 on the ground of its inadequacy. 2. The respondent was charged for commission of offences under Sections 18 and 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the NDPS Act) by learned Special Judge-II, Kullu with the allegations that on 4.9.2016 at about 11.10 p.m. the respondent was found in exclusive and conscious possession of 475 grams of cannabis/charas and 48 grams of opium unauthorisedly while travelling in Bus No.HP-19B-6341. 3. The prosecution examined seven witnesses. On 01.04.2019, respondent pleaded guilty and on the same day, learned trial Court convicted the respondent for offences under Sections 18 and 20 of the ND&PS Act in the following terms: “After giving time for reflection, accused again expressed his desire to plead guilty. Since the accused has been given sufficient time for reflection regarding his desire to plead guilty, the Court is fully satisfied that the accused is pleading guilty voluntarily without any inducement, threat or promise from any quarter. Separate statement of the accused that he is pleading guilty voluntarily also recorded. Thus, on having fully satisfied that the accused is pleading guilty voluntarily, he is convicted for the commission of offences punishable under Sections 18 and 20 of the NDPS Act. Be listed for hearing on quantum of sentence after respite”. 4. The respondent was heard on quantum of sentence. Considering the fact that respondent was first offender and sole bread earner of his family as also the chances of his reformation, learned trial Court took a lenient view and sentenced the respondent as under: Offence Substantive sentence Fine Default sentence Under Section 18 of the NDPS Act Imprisonment for one month. Rs.5,000/- Imprisonment for one week. Under Section 20 of the NDPS Act Imprisonment for two months and twenty six days. Rs.20,000/- Imprisonment for one week. The respondent-convict was found to have suffered the custody w.e.f. 04.09.2016 to 02.01.2017 i.e. for a total period of three months and twenty-seven days, therefore, the sentence imposed upon the respondent was considered as undergone. The respondent also deposited the fine amount. 5. The appellant-State has challenged the sentence imposed upon the respondent as inadequate. Rs.20,000/- Imprisonment for one week. The respondent-convict was found to have suffered the custody w.e.f. 04.09.2016 to 02.01.2017 i.e. for a total period of three months and twenty-seven days, therefore, the sentence imposed upon the respondent was considered as undergone. The respondent also deposited the fine amount. 5. The appellant-State has challenged the sentence imposed upon the respondent as inadequate. It is submitted that learned Special Judge has not taken judicious view of the matter. The respondent was found in conscious possession of intermediate quantity of charas and opium. The maximum awardable sentence for each of such offence was imprisonment upto 10 years with fine extending upto Rs.1,00,000/-. The sentence imposed upon the respondent is alleged to be against the object of NDPS Act. It is further submitted that the sentence imposed upon the respondent is in no manner proportionate to the crime committed by him. 6. Per-contra, learned counsel for the respondent has submitted that respondent is a Japanese citizen and has not been able to visit his country and family since 2016 on account of the pendency of present appeal. It is also submitted that learned Special Judge had imposed the sentence upon respondent after considering all the relevant mitigating factors. The respondent is stated to be first offender and the ground of his being sole bread earner in the family has been reiterated. 7. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 8. Noticeably, the respondent has not raised any challenge to his conviction for offences under Sections 18 & 20 of the NDPS Act at any stage. It being so, the only question for consideration before this Court is regarding the adequacy of sentence imposed upon the respondent by learned Special Judge. 9. The respondent pleaded guilty to the charges framed against him. Thus, he admitted to have remained in exclusive and conscious possession of 475 grams of charas and 48 grams of opium while travelling in a bus at about 11.10 p.m. on 04.09.2016. 10. As per the notification specifying small and commercial quantity of Narcotic Drugs and Psychotropic Substances, quantity between 25 grams to 2.5 Kg. of opium is intermediate quantity. As regards the cannabis, the quantity between 100 grams to 1 kg. falls under the category of intermediate quantity. 10. As per the notification specifying small and commercial quantity of Narcotic Drugs and Psychotropic Substances, quantity between 25 grams to 2.5 Kg. of opium is intermediate quantity. As regards the cannabis, the quantity between 100 grams to 1 kg. falls under the category of intermediate quantity. Therefore, the respondent was convict of intermediate quantity of opium and also the same quantity of cannabis. As per Section 18 of the NDPS Act, a person found in possession of intermediate quantity of opium in contravention of provision of the NDPS Act, or any rule or order, made thereunder, is liable for punishment with rigorous imprisonment extending to 10 years with a fine extending upto Rs.1,00,000/-. The possession of intermediate quantity of Cannabis is also punishable in the same manner under Section 20 of the NDPS Act. 11. This Court vide order dated 8.9.2020 has already held that the benefit of Section 265A of the Code of Criminal Procedure was not available to the convict/ respondent, as such benefit could be availed in those cases only where the offence is punishable with imprisonment extending upto seven years. The order passed by this Court has also been upheld by the Hon’ble Supreme Court vide judgment dated 16.12.2020 passed in Special Leave to Appeal (Crl.) No.6052 of 2020. 12. In Gurdev Singh vs. State of Punjab, (2021) 6 SCC 558 , the Hon’ble Supreme Court has held that while sentencing a convict for offences under NDPS Act, the Court is not precluded from considering additional factors besides the factors laid down under Section 32-B of the Act ibid. It has further been underlined that the quantity of recovered contraband in a particular case can be one of such factors. After considering the Statement of Objects and Reasons behind enactment of the NDPS Act, the Hon’ble Supreme Court has also held as under: “15. At this stage, the Statement of Objects and Reasons for enactment of NDPS Act are required to be referred to. Before the NDPS Act 1985 was enacted, the statutory control over narcotic drugs was exercised in India through a number of Central and State enactments viz. (a) the Opium Act, 1857, (b) the Opium Act, 1878 and (c) The Dangerous Drugs Act, 1930. Before the NDPS Act 1985 was enacted, the statutory control over narcotic drugs was exercised in India through a number of Central and State enactments viz. (a) the Opium Act, 1857, (b) the Opium Act, 1878 and (c) The Dangerous Drugs Act, 1930. However, with the passage of time and developments in the field of illicit drug traffic and drug abuse at national and international level it was noticed and found that: (i) The scheme of penalties under the aforesaid Acts was not sufficiently deterrent to meet the challenge of well- organized gangs of smugglers; (ii) The country has for the last few years been increasingly facing the problem of transit traffic of drugs coming mainly from the neighbouring countries and destined mainly to Western countries; and (iii) During recent years new drugs of addiction which have come to be known as psychotropic substances have appeared on the scene and posed serious problems to national governments. Therefore with a view to overcome the aforestated deficiencies the NDPS Act, 1985 came to be enacted. That thereafter to check the menace of dangerous drugs flooding the market, Section 37 of the Act came to be amended and it has been provided that the accused of an offence under the Act shall not be released on bail during trial unless the mandatory conditions provided in Section 37 are satisfied. 16. While considering the submission on behalf of the accused on mitigating and aggravating circumstances and the request to take lenient view and not to impose the punishment higher than the minimum sentence provided under the Act it should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims who are vulnerable; it cause deleterious effects and deadly impact on the society; they are hazard to the society. Organized activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances shall lay to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, it has a deadly impact on the society as a whole. Therefore, it has a deadly impact on the society as a whole. Therefore, while awarding the sentence/punishment in case of NDPS Act, the interest of the society as a whole is also required to be taken in consideration. Therefore, while striking balance between the mitigating and aggravating circumstances, public interest, impact on the society as a whole will always be tilt in favour of the suitable higher punishment. Therefore, merely because the accused is a poor man and/or a carrier and/or is a sole bread earner cannot be such mitigating circumstances in favour of the accused while awarding the sentence/punishment in the case of NDPS Act. Even otherwise, in the present case, the Special Court, as observed hereinabove has taken into consideration the submission on behalf of the accused that he is a poor person; that he is sole bread earner, that it is his first offence, while not imposing the maximum punishment of 20 years R.I and imposing the punishment of 15 years R.I. only.” 13. Learned Special Judge considered the following factors as mitigating circumstances for imposing punishment in the instant case: (a) Respondent being first offender; (b) He was the sole bread earner of the family; (c) Chances of reformation. The impugned order, however, does not specify the basis on which learned Special Judge held the above noted circumstances to be available in the facts of the case. 14. Further, there was nothing on record to suggest as to for what purpose the respondent was in India, why he had visited District Kullu and where was his destination. 15. In any case, learned Special Judge did not consider whether the sentence being imposed on convict/ respondent was proportionate to the offences proved against him. The nature, gravity and social impact of offences committed by respondent also did not draw the attention of learned Special Judge. 16. The quantity of opium and charas found in possession of convict/respondent could not have been easily ignored. It was clearly suggestive that the convict/respondent was transporting substantial quantity of opium and cannabis for its commercial use. The approach adopted by learned Special Judge while sentencing the convict/respondent surely is not in conformity with the Objects and Reasons for which the NDPS Act has been enacted. It was clearly suggestive that the convict/respondent was transporting substantial quantity of opium and cannabis for its commercial use. The approach adopted by learned Special Judge while sentencing the convict/respondent surely is not in conformity with the Objects and Reasons for which the NDPS Act has been enacted. The effect of commission of offences by convict/respondent on the society in general and vulnerability of the young population of the country in particular has also been ignored by learned Special Judge. The sentence imposed upon the convict/ respondent by learned Special Judge can by no means be assessed as proportionate to the crime committed by him. 17. Even if it is assumed that the convict/respondent was first offender and had no one to support the family, such circumstances by themselves cannot be said to be sufficient to impose sentence which on the face of it is disproportionate to the seriousness and gravity of crime. Similarly, the application of reformative theory in the cases of conviction under the NDPS Act cannot over-ride all other relevant aspects viz., gravity, seriousness of the offences proved to have been committed by the convict and its social impact and implications. In the given facts of the case, I do not find existence of any mitigating circumstance in favour of the convict/respondent. Merely because he has admitted his guilt does not reflect any remorse in true sense. It can always be used as a ploy to get away with lesser punishment. 18. Keeping in view the facts of the case and also the exposition of law as noticed above, the impugned sentence dated 01.04.2019 passed by learned Special Judge-II, Kullu, H.P. in Sessions Trial No. 10 of 2017, is modified and enhanced. The convict/respondent is sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.20,000/- for commission of offence under Section 18 of the NDPS Act and in default of payment of fine, to undergo simple imprisonment for six months. He is further sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.45,000/- for commission of offence under Section 20 of the NDPS Act and in default of payment of fine, to undergo further simple imprisonment for one year. However, the sentences imposed upon the convict/ respondent shall run concurrently. He is further sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.45,000/- for commission of offence under Section 20 of the NDPS Act and in default of payment of fine, to undergo further simple imprisonment for one year. However, the sentences imposed upon the convict/ respondent shall run concurrently. The period of detention already undergone by the convict/respondent shall be set off against the sentence imposed upon him by this Court. 19. Necessary warrant of arrest of convict/respondent be issued for the purpose of forwarding him to Jail. 20. Appeal is accordingly disposed of, so also the pending miscellaneous application(s), if any.