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Judgment
SURYA PARTAP SINGH, J.
The present appeal has been filed by the appellants against the judgment of conviction and order of sentence dated 13.10.2005, passed by the Court of learned Special Judge Bathinda, 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.7 dated 08.01.2004, was registered in Police Station Rama, for the commission of offence punishable under Section 15 of Narcotic Drugs and Psychotropic Substances Act, hereinafter being referred to as ‘NDPS Act’. The abovementioned FIR was lodged at the instance of ‘ASI Bahadur Singh’. In the wake of abovementioned FIR, the investigation was taken up by the police, and as an outcome of abovesaid investigation, the appellants were sent to face trial before the learned trial Court.
The appellants participated in the abovementioned trial, which, by virtue of impugned judgment, culminated into their conviction. Thus, vide order dated 13.10.2005, on the point of quantum of sentence, following sentence was awarded to the appellants:-
| Offence under Sections | Sentence |
|---|---|
| 15(b) of NDPS Act | Rigorous imprisonment for a period of one year each and to pay a fine of Rs.2,000/- each and in default thereof to further undergo rigorous imprisonment for a period of three months each. |
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 Bahadur Singh’, who had reported that on 08.01.2004, he was leading a team of police officials, deputed for patrolling duty. According to above-named police officer, when the police party reached the bridge of canal minor, from side of Village Rama, two persons were spotted, who were coming on a scooter bearing registration No.PB04-B-463. As per above-named police officer, on noticing the presence of police party, they tried to take a U-turn, but on the basis of suspicion, both of them were apprehended and on enquiry, they disclosed their names as ‘Nirmal Singh’ and ‘Sukhmander Singh’ (both appellants herein).
According to above-named police officer, on search of bag kept in between the above-named two persons, on the scooter, 11 kg of poppy husk was recovered.
It was 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 with regard to 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:-
Ex.PA - Consent statement of ‘Nirmal Singh’ (the appellant No.1)
Ex.PB - Consent statement of ‘Sukhmander Singh’ (the appellant No.2)
Ex.PC - Seizure memo of contraband along with scooter
Ex.PD - Order of empowered Committee for disposal of drugs
Ex.PE - The information memo sent to the police station (ruqqa)
Ex.PE/1 - First Information Report
Ex.PG - Site plan of the place of recovery
Ex.PH - Arrest memo of both the appellants
Ex.PI - Information regarding the arrest of both the appellants
Ex.PJ - Application regarding production of appellants along with case property
Ex.PK - Inventory
Ex.PK/1 & Ex.PK/2 - Statements of both the appellants
Ex.PL - Application under Section-52 of NDPS Act
Ex.PM - Special report to higher authority
Ex.PN - Report of Chemical Examiner
Ex.PO - Affidavit of Ct. Sukhdev Singh
Ex.P1 - Sample seal
Ex.P2 - RC of scooter
Ex.P3 to P10 - Photographs of the place of recovery
Ex.P11 to P18 - Negatives
To provide support and corroboration to the above-mentioned documentary evidence, as many as three witnesses were examined by the prosecution. They were:-
PW-1 - ASI Bahadur Singh
PW-2 - ASI Sukhdev Singh
PW-3 - Ct. Sukhdev Singh
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 their defence, the appellants had examined only one witness, i.e. DW-1 Major Singh.
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 appellants, to address arguments. Thereafter, a judgment of conviction, against the appellants, was pronounced and, accordingly, the appellants were sentenced to undergo imprisonment, as detailed above.
Heard.
It has been contended on behalf of appellants 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 appellants, the learned trial Court has failed to appreciate that necessary ingredients meant for the commission of offence under Section 15(b) 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 appellants, merely, on the basis of conjectures and surmises, as well as assumptions and presumptions, the learned trial Court held that charges against the appellants were successfully proved. The learned counsel for the appellants has further contended that the appellants have been wrongly held guilty, and convicted, by the learned trial Court.
However, during the course of arguments, the learned counsel for the appellants has contended that in the instant appeal, the appellants are not inclined to challenge the finding of conviction recorded by the learned trial Court. The learned counsel for the appellants has categorically contended that at this stage, by virtue of present appeal, the appellants are challenging the order on quantum of sentence, only.
It has been further contended by learned counsel for the appellants that the incident had taken place way back in the year 2004. According to learned counsel for the appellants, the appellants are facing the agony of litigation for the last more than 22 years and that, in fact, they have already suffered more punishment than they deserved.
In addition to above, the learned counsel for the appellants has also argued that the quantity of contraband recovered from the possession of appellants was within the ambit of ‘non-commercial quantity’ and that in the present case the appellant No.1 ‘Nirmal Singh’ has already undergone imprisonment for a period of three months & twenty three days, and the appellant No.2 ‘Sukhmander Singh’ for three months and twenty two days. According to learned counsel for the appellants, in view of above-discussed factors, and the fact that minimum sentence has not been prescribed for the offence, for which the appellants were convicted, the sentence already undergone by the appellants 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 15(b) of NDPS Act. According to learned State Counsel, the sentence awarded to the appellant, i.e. imprisonment for a period of one year, is already on lower side, and that the appellants are not entitled to a sentence of less than one year 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 appellants that they are 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 appellants, for the offence under Sections 15(b) of NDPS Act. Accordingly, the abovementioned finding is hereby affirmed and qua the judgment of conviction instant appeal is hereby dismissed.
As far as the order on quantum of sentence is concerned, in view of the fact that the appellant No.1 ‘Nirmal Singh’ has already undergone imprisonment for a period of three months & twenty three days and appellant No.2 ‘Sukhmander Singh’ for three months and twenty two days, against the awarded sentence of one year, it is hereby held that the appellants are entitled to a lenient view.
In view of abovementioned observations, the sentence awarded to the appellants 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.
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: -
that the quantity of contraband found in possession of appellants was non-commercial quantity and minimum sentence for the same has not been prescribed;
that the incident in question had taken place about 22 years ago;
that the appellant is facing the agony of protracted trial for the last 22 years;
that in the last more than 20 years, any of the appellants has not been prosecuted for any offence, whatsoever;
that against the awarded sentence of one year, the appellant No.1 ‘Nirmal Singh’ has already undergone imprisonment for a period of three months & twenty three days and appellant No.2 ‘Sukhmander Singh’ for three months and twenty two days;
that appellant No.1 ‘Nirmal Singh’ is a 52-year-old and appellant No.2 ‘Sukhmander Singh’ is a 49-year-old.
As a cumulative effect of abovementioned observations, it is hereby held that in the present case, the appellants are 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 appellants is reduced to the period already undergone by them.
Pending miscellaneous application(s), if any, stand(s) disposed of, accordingly.