Arshad Husain and Others vs State of U.P.

Mohammad Tahir, J.—1. This criminal appeal has been filed against the judgment and order dated 30.7.2004 passed by the Addl. Sessions Judge, Court No. 1, Jhansi in Special S.T. No. 80 of 2003 (State v. Arshad Husain) and Special S.T. No. 81 of 2003 (State v. Azad Khan), whereby the trial court had convicted the accused appellants Arshad Husain and Azad Khan under Section 22(c) of the NDPS Act and sentenced them to undergo rigorous imprisonment for 14 years and to pay fine of Rs. 1,50,000/- each and they have been directed to undergo further rigorous imprisonment for two years in default of payment of fine.

The prosecution case, in nutshell, is this that on 29.4.2003 the police of G.R.P. Jhansi got an information through an informer that two persons and one lady are coming by Train No. 7021 Down Southern Express and are in Boggie No. S-8. They were carrying with them the huge quantity of Ganja. Sri Awadhesh Narain Singh took S.I. Shiv Sharan Singh Parihar, lady constable Aaisha Khatoon as well as the informer, when they were going towards platform No. 9 on the over bridge S.I. Dinesh Singh, Constable Subedar Pal, constable Nagesh Pandey, Constable Jai Karan, C. Brijanand and H.C. Jag Mohan, who were present there on regular checking met the police party and the S.O. also took them with him. The police personnel came to platform No. 9, Constable Jai Singh was present there on night duty. He also accompanied the police party. By that time the Southern Express had reached platform No. 9. The informer pointed out towards the accused persons in Boggie No. S-8 and had left the scene. The S.S.I. procured two public witnesses namely Mahendra Kumar and Devendra Kumar and they took personal search of one another and confirmed that none of them had any illicit article like Ganja. Thereafter the police party reached near the accused persons and found two male and one female there. After seeing the police personnel they took their hand bags and brief cases in their hand and tried to alight from the train. The police party at about 22.10 hours arrested these persons. By that time the Deputy S.P. Railways also reached there. The persons arrested by police were asked about their whereabouts. One of them told his name Arshad Hussain S/o. Ajmat Hussain and the second one told his name Azad Khan S/o. late Jamal Khan and the third one told her name Nisha Khatoon w/o Arshad Hussain. The accused persons were made aware of their right under Section 50 of the NDPS Act. The accused were searched in presence of Deputy S.P. Railways and from the brief case held by accused Arshad Hussain about 25 kg Ganja wrapped in a polythene was recovered. He was also carrying a bag, in which about 20 kg Ganja wrapped in a polythene was recovered. On the search of accused Azad Khan, one bag which was held by him in his right hand about 20 kg Ganja wrapped in a polythene was recovered and from another bag held by him in his left hand about 15 kg Ganja wrapped in polythene was also recovered. From the possession of Nisha Khatoon about 15 kg Ganja wrapped in a polythene was found in a hand bag held by her in her right hand and from another bag held by her in her left hand about 5 kg Ganja wrapped in polythene was also recovered. Thus, a recovery of 45 kg, 35 kg and 20 kg was made from accused Arshad Hussain, Azad Khan and Nisha Khatoon respectively. On enquiry the accused persons told that they brought this Ganja from Andhra Pradesh for selling it in Delhi, where it is sold at the rate of Rs. 1500/- per kg while it is purchased from Andhra Pradesh at the rate of Rs. 1000/- per kg. The total cost of recovered Ganja was Rs. Five lacs. The accused persons had no licence for carrying, sale or purchase of Ganja. Therefore, they were taken into custody. The sample of recovered Ganja was prepared and thereafter the recovered contraband Ganja and the sample were sealed separately and recovery memo (Ext. Ka.1) was prepared. It was signed by the police personnel along with the public witnesses. It was also counter signed by Virendra Kumar, the Deputy S.P. Railways and the signatures of the accused persons were also obtained on that recovery memo.

On the basis of the recovery memo (Ext. Ka.1) three cases at Case Crime Nos. 114, 115 and 116 of 2003 were registered against the accused persons and Check FIR (Ext. Ka.4) was prepared. The entry regarding registration of the case was made in the G.D. (Ext. Ka.5). During investigation the sample of recovered contraband was sent for chemical examination. The reports of the chemical examination regarding accused persons are Ext. Ka.15, Ext. Ka.16 and Ext. Ka.17. All the samples were found to be Ganja in the Chemical Examiner Report.

The trial court framed charges against the accused appellants under Section 21 read with Section 22 of the NDPS Act. The accused pleaded not guilty to the charge and claimed to be tried.

The prosecution in order to prove its case examined Sri Awadhesh Narain Singh as PW-1, Constable Om Prakash as PW-2, Constable Santosh Kumar as PW-3, S.I. Balwant Singh as PW-4 and Constable Kalyan Singh as PW-5.

The accused appellant Arshad Hussain in his statement recorded under Section 313 Cr.P.C. has stated that co-accused Smt. Nisha Khatoon is his wife and they were coming from Nagpur. Some boys were uttering obscene words and some altercation took place and some police personnel took them for interrogation and thereafter they have been falsely implicated in this case.

Accused appellant Azad Khan in his statement recorded under Section 313 Cr.P.C. has stated that on the issue of ticket some quarrel took place in the train and due to the same he has been falsely implicated in this case.

No defence evidence has been produced on behalf of accused persons.

The learned trial court after perusing and analyzing the evidence on record and hearing the counsel for both the parties convicted and sentenced the accused appellants as hereinbefore mentioned in the beginning of the judgment. Hence, this appeal.

I have heard Sri Yogesh Srivastava learned counsel for the appellants, Sri S.A. Naseem learned AGA for the State and perused the record.

Learned counsel for the appellants has submitted that he does not want to argue this appeal on merit and he wants to confine his argument only on the point of quantum of punishment.

Learned counsel for the appellants has submitted that the accused appellants are in jail since the very beginning i.e. 29.4.2003, thus they have suffered incarceration of about 12 years, 8 months and 11 days in this case and that the trial court has not given special reasons for awarding the sentence over and above the minimum sentence of imprisonment prescribed under the NDPS Act for the said offence. Thus, the trial court has not considered the provisions of Section 32-B of the NDPS Act in awarding the sentence of 14 years rigorous imprisonment which is over and above the minimum sentence of 10 years as has been provided under Section 22(II)(C) of the NDPS Act. He has further submitted that the accused appellant Arshad Hussain is aged about 41 years and accused appellant Azad Khan is aged about 38 years at this time as per their statement recorded under Section 313 Cr.P.C.; that in the family of appellant No. 1 Arshad Hussain there is mother and three unmarried sisters and wife and in the family of appellant No. 2 Azad Khan there is wife. It is further submitted that the accused appellants have no criminal antecedents. So their sentence of imprisonment may be reduced to the period already undergone by them as they have suffered more than 2 years, 8 months and 11 days above the minimum sentence of imprisonment.

On the other hand, learned AGA for the State has submitted that 45 kg Ganja has been recovered from the possession of the accused appellant Arshad Hussain and 35 kg Ganja has been recovered from the possession of accused appellant Azad Khan and the same lies in the category of commercial quantity because in case of Ganja the commercial quantity is greater than 20 kg. So the act of the accused appellants was against the main stream of the society and against the interest of the Nation. So there is no ground to reduce the sentence of the accused appellants awarded to them by the trial court.

I have considered the rival submissions of learned counsel for both the parties.

First of all, I would like to refer Section 32-B of the NDPS Act which reads as under:--

"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;

(e) The fact that the offender belongs to organised international or any other criminal group which is involved in the commission of the offence; and

(f) the fact that the offender is involved in other illegal activities facilitated by commission of the offence."

The above Section 32-B of the NDPS Act has been added and made effective from 2.10.2001. The incident of this case took place on 29.4.2003 and the impugned judgment was pronounced by the trial court on 30.7.2004. So Section 32B of the NDPS Act is fully applicable in the case at hand as has been held by the Apex Court in the case of Jawahar Singh v. State (NCT of Delhi), , (2009) 6 SCC 490.

The trial court has awarded the sentence of 14 years'' rigorous imprisonment and fine of Rs. 1,50,000/- to both the accused appellants under Section 22 (c) of the NDPS Act. The quantity of the Ganja which has been recovered from the possession of both the accused appellants is much above the commercial quantity. There is nothing on record to show that the accused appellants had committed any act which may lie under any of the clauses of Section 32B of the NDPS Act hereinbefore mentioned. But that does not mean that the Court cannot award the sentence more than the minimum sentence in the absence of any of the conditions mentioned in clauses (a) to (f) because these conditions are in addition to the factors as the Court may deem fit in awarding higher punishment. There is also nothing on record to show that the accused appellants have any previous criminal history. Undisputedly the accused appellant Arshad Hussain is aged about 41 years and accused appellant Azad Khan is aged about 38 years at this time as per their statement recorded under Section 313 Cr.P.C. and that in the family of appellant No. 1 Arshad Hussain there is mother and three unmarried sisters and wife and in the family of appellant No. 2 Azad Khan there is wife as is evident from the supplementary affidavit filed on behalf of the accused appellants. Thus, regard being had to all the facts and circumstances of the case I think that reduction of sentence of 14 years'' R.I. awarded to the appellants to the period of imprisonment already undergone by them and reduction of fine from Rs. 1,50,000/- to Rs. 1,00,000/- and, in default of payment of fine, reduction of sentence of two years'' rigorous imprisonment to six months'' rigorous imprisonment would meet the ends of justice.

In view of the above, the appeal is partly allowed. The conviction of the appellants under Section 22 (c) of the NDPS Act is maintained but the sentence of 14 years'' rigorous imprisonment awarded to the appellants is reduced to the period of imprisonment already undergone by them and fine of Rs. 1,50,000/- is reduced to Rs. 1,00,000/-, in default of which they will have to undergo six months'' rigorous imprisonment instead of two years'' rigorous imprisonment.

Accused appellants Arshad Hussain and Azad Khan are in jail. Since they have already served out the sentence of imprisonment awarded to them, so they shall be set at liberty forthwith on payment of fine of Rs. 1,00,000/- or in case of non payment of the same on completion of 6 months'' rigorous imprisonment.

The case property relating to this case shall be disposed of as per rule.

Lower court record be sent to the lower court concerned along with the copy of this judgment to do the needful.

Certified copy of this judgment be supplied to the counsel for the accused appellant without any delay.