Mahavir Singh vs State of Haryana

SURYA PARTAP SINGH, J.

The present appeal has been filed by the appellant against the judgment of conviction dated 02.07.2005 and order of sentence dated 04.07.2005, passed by the Court of learned Special Judge Sonepat, designated under NDPS Act, hereinafter being referred to as ‘trial Court’ only.

Briefly stating the facts emerging from record are that one FIR, i.e. the FIR No.15 dated 16.01.2004, was registered in Police Station City Sonepat, for the commission of offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act, hereinafter being referred to as ‘NDPS Act’. The abovementioned FIR was lodged at the instance of ‘ASI Kanwal Singh’. In the wake of abovementioned FIR, the investigation was taken up by the police, and as an outcome of abovesaid investigation, the appellant was sent to face trial before the learned trial Court.

The appellants participated in the abovementioned trial, which, by virtue of judgment dated 02.07.2005, hereinafter being referred to as impugned judgment, culminated into his conviction. Thus, vide order dated 04.07.2005, on the point of quantum of sentence, hereinafter being referred to as impugned order, following sentences were awarded to the appellants:-

Aggrieved of the abovementioned judgment of conviction and order of sentence, the present appeal has been preferred.

In nut-shell, the facts emerging from record are that the FIR of this case came into being at the instance of ‘ASI Kanwal Singh’, who had reported that on 16.01.2004, when he was leading a team of police officials, deputed for patrolling duty, in the area of Faiz Bazar, Sonepat, he received a tip-off from a reliable source that ‘Mahabir’ was habitual of dealing with narcotic substance, and that on that day, he having some charas for supplying to the public, and was standing near the turning point of the market. It was also informed that if raid would be conducted, Mahabir could be apprehended red handed. As per above-named police officer in view of above information a raid was conducted, Mahabir, the appellant was apprehended and from his possession 1 kg. of charas was recovered.

It was the case of the prosecution that pursuant to recovery of abovementioned contraband, necessary formalities with regard to seizure & sealing of contraband, lodging of FIR, and formal arrest of the accused were completed, and further investigation taken up. According to prosecution, during the course of investigation, the Investigating Officer inspected the spot, prepared rough site plan of the place of occurrence, recorded the statement of witnesses, under Section 161 CrPC, and completed other usual formalities of investigation. Thereafter, the final report under Section 173 of CrPC was filed.

To discharge its burden of proving the charge against the appellant, the prosecution in the instant case had relied upon documentary as well as oral evidence. The documents proved and marked with exhibits, by the prosecution, were:-

To provide support and corroboration to the above-mentioned documentary evidence, as many as seven witnesses were examined by the prosecution. They were:-

Once the prosecution evidence was recorded, the learned trial Court completed all the essential formalities, enshrined under Section 313 CrPC. Thereafter, opportunity of defence evidence was afforded to the appellant. In his defence, the appellant had examined three witnesses. They were:-

Once the evidence of both the parties was complete, the learned trial Court gave opportunity to the learned public prosecutor and the learned counsel for the appellant, to address arguments. Thereafter, a judgment of conviction, against the appellant, was pronounced and, accordingly, the appellant was sentenced to undergo imprisonment, as detailed above.

Heard.

It has been contended on behalf of appellant that the impugned judgment of conviction and order of sentence deserve to be set aside, as both of them are outcome of non-application of judicial mind. According to learned counsel for the appellant, the learned trial Court has failed to appreciate that necessary ingredients meant for the offence under Section 20 of NDPS Act were not proved by the prosecution, and that the prosecution evidence was grossly inadequate to meet the standard, prescribed under the law, for proving the charge. As per learned counsel for the appellant, merely, on the basis of conjectures and surmises, as well as assumptions and presumptions, the learned trial Court held that charges against the appellant was successfully proved. The learned counsel for the appellant has further contended that the appellant has been wrongly held guilty, and convicted, by the learned trial Court.

However, during the course of arguments, the learned counsel for the appellant has contended that in the instant appeal, the appellant is not inclined to challenge the finding of conviction recorded by the learned trial Court. The learned counsel for the appellant has categorically contended that at this stage, by virtue of present appeal, the appellant is challenging the order on quantum of sentence, only.

It has been further contended by learned counsel for the appellant that the incident had taken place way back in the year 2004, and that the appellant, the appellant is facing the agony of litigation for the last more than 22 years and that, in fact, he has already suffered more punishment than he deserved. As per learned counsel for the appellant, either before the commission of instant offence, or thereafter the appellant has not been prosecuted, ever, for any offence, which shows that the appellant already stands reformed.

In addition to above, the learned counsel for the appellant has also argued that the quantity of contraband was non-commercial, and that in the present case the appellant has already undergone imprisonment for a period of two years and four days. According to learned counsel for the appellant, in view of above-discussed factors, and the fact that minimum sentence has not been prescribed for the offence, for which the appellant was convicted, the sentence already undergone by the appellant may be treated to be sufficient.

Per contra, the learned State Counsel has argued that the appellant has been found guilty for the commission of offence punishable under Sections 20 of NDPS Act. According to learned State Counsel, the sentence awarded to the appellant, i.e. imprisonment for a period of ten years, is already on lower side, and that the appellant is not entitled to a sentence of less than ten years imprisonment. As per learned State Counsel, the instant appeal has no merit and deserves dismissal.

The record has been perused carefully.

Once it is categorical stand of the appellant that he is not challenging the judgment of conviction, passed by the learned trial Court, it is hereby held that there is no scope for interference or indulgence in the findings recorded by the learned trial Court, with regard to conviction of appellant, for the offence under Sections 20 of NDPS Act. Accordingly, the abovementioned finding is hereby affirmed and qua the judgment of conviction instant appeal is hereby dismissed.

In the present case, a very interesting question has been cropped up. It is as to whether the quantity of contraband recovered from the possession of appellant was commercial quantity or non-commercial quantity. As per case, set-out by the prosecution, 1 kg charas was recovered from the possession of appellant. The abovesaid quantity was exactly equal to the commercial quantity of charas. As per notification, issued by the Central Government, under NDPS Act, the quantity mentioned against commercial quantity of charas is 1 kg. However, Section 2(viia) of NDPS Act prescribes the definition of ‘commercial quantity’, which reads as under:-

In view of abovementioned definition of ‘commercial quantity’, read with the contents of notification, issued by the Central Government under NDPS Act, it is hereby observed that the quantity of contraband recovered from the possession of appellant was non-commercial quantity.

As far as the order on quantum of sentence is concerned, in view of the fact that the appellant has already undergone imprisonment for a period of two years and four days, against the awarded sentence of ten years, it is hereby held that the appellant is entitled to a lenient view.

In the light of above observations, if the factual matrix of present case is analyzed, it transpires that following are the points which are required to be taken into consideration: -

In view of abovementioned observations, the sentence awarded to the appellant is hereby held to be harsh and, as a consequence thereof, it is hereby observed that with regard to quantum of sentence, there is need for interference and indulgence in the impugned order on the point of quantum of sentence by exercising the appellate jurisdiction vested in this Court. Thus, in my opinion, by exercising the abovementioned jurisdiction, the sentence awarded to the appellants needs to be rationalized and reduced.

As a cumulative effect of abovementioned observations, it is hereby held that in the present case, the appellant is entitled to a lenient view, and that the sentence already undergone in the present case, is adequate to meet the ends of justice.

As a sequel to the aforesaid discussions, the present appeal is hereby partly allowed. The judgment of conviction is upheld; but order on the point of quantum of sentence is modified, and the sentence awarded to the appellant is reduced to the period already undergone by them.

Pending miscellaneous application(s), if any, stand(s) disposed of, accordingly.