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2024 DIGILAW 708 (PNJ)

Tasbbar v. State of Punjab

2024-04-19

KIRTI SINGH

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JUDGMENT : KIRTI SINGH, J. 1. Instant appeal has been directed against the judgment of conviction and order of sentence dated 29.09.2006 passed by Special Judge (under The Narcotic Drugs and Psychotropic Substances Act, 1985) (hereinafter referred to as ‘NDPS Act’) Ropar, whereby the appellant­ accused has been held guilty for commission of offence punishable under Section 15 of NDPS Act and sentenced to undergo rigorous imprisonment for a period of 02 years and also sentenced to pay fine of Rs.10,000/- with default stipulation. Factual Matrix 2. The facts in brief of the case which emerged from the record are that on 14.07.2004 police party headed by ASI Harbans Singh along with other police officials was present at Tax Barrier Ghanauli where an informer gave information to ASI Harbans Singh that the accused/appellant was indulged in illicit procuring and selling of poppy husk by bringing it from UP and in case a raid is conducted the accused could be apprehended. This information was reduced into writing and sent to police station for registration of FIR. Thereafter, the police party reached to the spot in the area of village Makori and on reaching the turning point, the accused was found sitting in the field and one plastic bag, the mouth of which was open, was lying in front of the accused. ASI Harbans Singh disclosed his identity to the accused and also informed the accused about his right and asked him as to whether he wanted to get his search conducted before a Gazetted Officer or Magistrate. The accused reposed faith in ASI Harbans Singh and consent of the accused in this regard was recorded. On checking of the bag, poppy husk was found, out of which two samples of 250 grams each were separated and remaining poppy husk weighing 9.5 kilograms was put in the same bag. The sample and remaining poppy husk were sealed with the seal bearing impressions ‘HS’. Specimen of the seal was also prepared and seal after use was handed over to HC Gian Singh. After completing all necessary formalities, the accused was arrested and the entire case property was deposited with the SHO in the police Malkhana. The sample was sent to the Assistant Chemical Examiner who reported that the same contained poppy husk. 3. After completion of investigation, report under Section 173 Cr.P.C. was presented in the Court. After completing all necessary formalities, the accused was arrested and the entire case property was deposited with the SHO in the police Malkhana. The sample was sent to the Assistant Chemical Examiner who reported that the same contained poppy husk. 3. After completion of investigation, report under Section 173 Cr.P.C. was presented in the Court. From the perusal of the report a prima fade case punishable under Section 15 of the NDPS Act was made out against the accused and he was charge-sheeted thereunder to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 7 witnesses, besides producing documentary evidence. Statement of the accused under Section 313 Cr.P.C. was recorded and in his defence he produced Gurmit Singh DWI and Balbir Singh DW2. Submissions by learned counsel for the parties 5. At the very outset, learned counsel for the appellant restricted his arguments to the extent of sentence undergone and did not opt to assail the finding of conviction. He further submitted that the appellant-accused has faced the agony of protracted trial for about 19 years. During the trial, he remained on bail, however, did not misuse the concession of bail. He further submitted that the appellant is not involved in any other criminal case and is now about 42 years old. He is suffering from various ailments and is sole bread earner in the family and no purpose will be served by sending him behind bars after about 19 years. He has already mended his ways of life and joined the mainstream of society. Therefore, he prayed that the appeal be partly allowed and the sentence awarded to the appellant be reduced to the period already undergone. 6. Per contra, learned State counsel has not disputed the factual submissions made by the counsel for the appellant. However, he supported the impugned judgment of conviction and order of sentence. He further stated that the learned Trial Court has adequately awarded the sentence and therefore does not require any interference. Analysis 7. After having heard learned counsel for the parties and perusing the paper book, this Court finds substance in the submissions made on behalf of the appellant regarding reduction of sentence. 8. He further stated that the learned Trial Court has adequately awarded the sentence and therefore does not require any interference. Analysis 7. After having heard learned counsel for the parties and perusing the paper book, this Court finds substance in the submissions made on behalf of the appellant regarding reduction of sentence. 8. On perusal of judgment passed by Trial Court, this Court is of the considered view that the Trial Court has not committed any error in appreciation of evidence available on record. Further, it is found that the Trial Court considered the evidence available on record and correctly found that the case of the prosecution is well supported by the witnesses and documentary evidence. The procedure was well followed by the prosecution and the witnesses have profoundly supported its case. The Trial Court has well considered the material available on record, hence no infirmity is found in the impugned order of conviction passed by the Trial Court, accordingly the same is upheld. 9. So far as the sentence is concerned, the matter is related to the incident happened on 14.7.2004, about twenty years ago. Since no minimum sentence is provided under the provision, the request of reducing sentence seems to be proper with enhancement of fine amount. The sentence of 02 years awarded by the trial Court can be reduced to already undergone i.e. 25 days due to the following reasons: (i) Appellant is now about 42 years old, and facing the agony of protracted trial for about 19 years. (ii) As per custody certificate, the appellant was granted bail by this Court on 9.11.2006, however, he did not misuse the concession of same. (iii) The appellant is not involved in any other criminal case. (iv) The appellant has mended his way of life and joined the mainstream of the society. 10. Hon’ble Supreme Court in Sk. Sakkar @ Mannan vs. State of West Bengal, 2021 (4) SCC 483 after considering the mitigating circumstances reduced the sentence to the period already undergone. The relevant extract of the said judgment is reproduced as under: “11. It is manifest from Section 20(i) of NDPS Act (as it stood in 1997), that even though a maximum sentence of five years RI and a fine of upto Rs.50,000/- was prescribed but there was no minimum mandatory sentence. The relevant extract of the said judgment is reproduced as under: “11. It is manifest from Section 20(i) of NDPS Act (as it stood in 1997), that even though a maximum sentence of five years RI and a fine of upto Rs.50,000/- was prescribed but there was no minimum mandatory sentence. The Legislature had in its wisdom left it to the judicious discretion of a court to award the minimum sentence albeit guided by the well known principles on the proportionality of sentence. Taking into consideration the peculiar facts and circumstances of this case, it appears to us that the ends of justice would be adequately met if the appellant’s sentence is reduced to the extent of the period he has already undergone. We order accordingly.” 11. Hon’ble Supreme Court in Issak Nabab Shah vs. State of Maharashtra (Crl. Appeal No. 828 of 2020) decided on 03.12.2020 has held as under: “5. Having heard the learned Advocates appearing for the respective parties and in the facts and circumstances of the case, more particularly when the quantity/Ganja recovered from the appellant was 6.300 kilogram, which is between small quantity and commercial quantity and considering the fact that the maximum punishment for such offence is 10 years rigorous imprisonment, out of which the appellant has already undergone six years rigorous imprisonment, we allow the present appeal in part and modify the impugned judgment and order passed by the learned trial Court, confirmed by the High Court, to the extent of imposing the sentence of six years rigorous imprisonment in place of ten years rigorous imprisonment as imposed by the learned trial Court and confirmed by the High Court. Rest of the judgment and order passed by the learned trial Court, confirmed by the High Court, is hereby confirmed.” Conclusion 12. Considering the case of accused and mitigating circumstances as discussed above and in view of legal proposition settled by Supreme Court, the appeal is partly allowed. The impugned judgment of conviction dated 29.09.2006 is upheld, however, sentence of the appellant is reduced to the period already undergone i.e. 25 days. The sentence of fine is enhanced from Rs. 10,000/- to Rs. 20,000/-. The appellant shall deposit the aforesaid enhanced fine amount of Rs. 20,000/- before the Trial Court within two months from the date of this judgment and in default he will be liable to undergo simple imprisonment of three months. The sentence of fine is enhanced from Rs. 10,000/- to Rs. 20,000/-. The appellant shall deposit the aforesaid enhanced fine amount of Rs. 20,000/- before the Trial Court within two months from the date of this judgment and in default he will be liable to undergo simple imprisonment of three months. The amount of Rs. 10,000/-, if deposited previously, shall be adjusted. The bail bonds of appellant-accused stand discharged. 13. Pending miscellaneous application(s), if any, shall also stand disposed of. 14. The case property if any may be dealt with as per rules after expiry of period of limitation for filing the appeal(s). Record of the case be sent back to the Court below.