Sageer Ahmad vs State of U.P.

Akhtar Husain Khan, J.—Present appeal has been filed by accused appellant Sageer Ahmad under section 374 of Cr.P.C. against judgement dated 22.1.2008 and order dated 25.1.2008 passed by learned Additional Session Judge/Fast Track Court No. 4, Firozabad in Special Session Trial No. 40 of 2003 (State of U.P. v. Sageer Ahmad and another), arising out of Crime No. R.C.S.I.B. 2003 of 2006, whereby learned Additional Session Judge/Fast Track Court No. 4, Firozabad has convicted accused appellant Sageer Ahmad for offence punishable under section 8 read with section 21C of N.D.P.S. Act and has sentenced him thereunder to rigorous imprisonment for 14 years with fine of Rs. one lac. Learned learned Additional Session Judge/Fast Track Court No. 4, Firozabad has further ordered that in default of payment of fine accused appellant shall undergo further imprisonment of one year.

Shri Rajul Bhargava appeared for accused appellant. Shri S.K. Singh, learned A.G.A. appeared for State of U.P. and Shri N.I. Jafri, learned counsel appeared for C.B.I.

I have heard learned counsel for the parties and have gone through records of the case.

In brief prosecution version is that on 4.11.2003 a secret source information was received that accused appellant Sageer Ahmad and co-accused Naresh Kumar are indulging in illicit trade of narcotic drugs and shall handover huge quantity of narcotic drugs i.e. contraband Smack (Heroin) to some unknown persons on 5.11.2003 at about 5.00 P.M. near reservation office/enquiry office of Railway Station, Friozabad, U.P. The said information was reduced in writing by Inspector Neelam Singh and submitted to S.P., E.O.U.-V (SIU-XI) Shri J.P. Verma who ordered its registration. Thereafter Inspector Khalil Sarvar was authorised to verify information received for further necessary action and a team was constituted under leadership of Inspector Khalil Sarvar. Other members of team were Inspector Neelam Singh, Inspector V.K. Shukla, CT. Rajesh Kumar, Ct. Phool Singh and Ct. (Driver) Mahinder Singh of EOU-V Branch of C.B.I. Shri H.S. Chopra, Additional S.P. of EOV-V (SIU-XI) Branch of C.B.I. was also deputed by the S.P. to supervise the operation at Firozabad. U.P.

The team requisitioned two independent witnesses Pradeep Kuma Gupta and Sunahri Lal and reached Railway Station, Firozabad near reservation office at about 4.40 P.M. on 5.11.2003 and took position. Around 5.00 P.M. the informant contacted team and pointed out that two persons, who were standing near the Railway over bridge opposite to computerized reservation office Railway Station, Frizoabad. The team watched said two persons for about 10 minutes and at around 5.15 P.M. when they were likely to move, team members and the independent witnesses approached them and cordoned them. Inspector Khalil Sarvar disclosed to said persons his identity as well as identity of other team members and independent witnesses. Thereafter one of said two persons disclosed his name as Sageer Ahmad son of Masheed Khan aged about 45 years resident of Mohalla Durgesh Nagar, Police Station Rasulpur, District Firozabad, U.P. and the other disclosed his name as Naresh Kumar (Gaur), caste Pandit aged about 38 years, resident of House No. 704/A, Begum Bag, Police Station Kwarsi, Aligarh, U.P. Thereafter both were offered to conduct personal search of C.B.I., team members but they declined to do so. In the meantime few persons gathered on the spot. They were requested to join the proceedings as witness but non of them came forward to act as witness. Thereafter Inspector Khalil Sarvar informed aforesaid Sageer Ahmad and Naresh Kumar that he had information to the effect that they had in their possession huge quantity of Smack (Heroin). Both were also informed that Shri H.S. Chopra Additional S.P. C.B.I., who is a Gazetted Officer of C.B.I. and is a competent officer under section 50 of N.D.P.S. Act, 1985 to effect their personal search in his presence, is available on the spot, even then they have legal right to be searched before any other competent Gazetted Officer or the nearest Magistrate for which arrangements could be made, if they so desire. Both were also informed that they are at liberty to opt any of the above options. Two separate notices under section 50 N.D.P.S. Act, 1985 were served on them separately. But both of them declined to be searched by any other competent Gazetted Officer or the nearest Magistrate and opted to be searched before Additional S.P. Sri H.S. Chopra present on the spot. Both of them were asked to exercise their option in writing whereupon both of them opted for their personal search before Shri H.S. Chopra and declined in writing their personal search before any other competent Gazetted Officer or the nearest Magistrate.

Thereafter Inspector Khalil Sarvar conducted personal search of the suspect Sageer Ahmad and recovered a transparent polythene packet containing yellowish coloured powder kept in another transparent polythene packet concealed in the waist portion of the trouser. Sample was taken in presence of independent witnesses and C.B.I. Team members and was tested with the help of field testing kit which gave positive result confirming the presence of Smack (Heroin) as its colour turned purple during the field test. The polythene packet containing Smack (Heroin) was weighed. Weight was found 940 grams. Thereafter two representative samples, each weighing 10 grams were drawn from the said polythene packet and were kept in small transparent polythene pouches which were sealed in two separate Khaki envelops with the C.B.I. brass seal bearing impression C.B.I. VKS 02 2003, marked as A-1 and A-2. Remaining quantity of Smack (Heroin) was retained in the same polythene packet and was placed in a big Khaki envelop sealed with the above said brass seal and marked as "A" signature''s of both the independent witnesses, team members and both suspects namely Sagir Ahmad and Naresh Kumar were obtained on the sample envelops A-1, A-2 as well as on envelop "A".

On search 470 grams Smack (Heroin) was recovered from possession of aforesaid Naresh Kumar. Above formalities were completed on spot in respect of him also.

Thereafter at about 9.30 P.M. both accused persons namely Sageer Ahmad and Naresh Kumar were arrested by C.B.I. team for having possession of contraband Smack (Heroin) and conspiring to sale/trade in illicit Narcotic Drugs. Separate arrest cum personal search memos were prepared in respect of the each accused person. Thereafter recovery memos were prepared on spot for both accused separately and were read to them. Recovery memos were readover and explained in Hindi to the raiding party members, independent witnesses and both the accused persons. Thereafter regular case was registered on the basis of recovery memos and investigation was done. After investigation charge sheet was submitted before court, whereupon Special Judge N.D.P.S. Act, Firozabad took cognizance and summoned both accused for offence under section 8/21 of N.D.P.S. Act.

Learned Special Judge, N.D.P.S. Act framed charges against accused appellant Sageer Ahmad and co-accused Naresh Kumar for offence punishable under section 8/21 of N.D.P.S. Act separately.

Both accused pleaded not guilty and claimed to be tried.

Prosecution examined P.W.1 Junior Scientific Officer, A.K. Dalela, P.W.2 Inspector C.B.I. Alam Singh, P.W.3 Inspector C.B.I. Khaleel Sarvar, P.W.4 Inspector C.B.I. Neelam Singh P.W.5 Indra Pratap, P.W.6 Pradeep Kumar Gupta, P.W.7 Shamsher Singh Chopra the then Additional S.P. C.B.I., P.W.8 Director of Central Forensic Science Laboratory, Dr. R.S. Verma and P.W.9 Inspector of Police C.B.I. A.K. Srivastava.

After prosecution evidence statements of both accused were recorded under section 313 Cr.P.C. by trial court. Both of them stated in their statements under section 313 Cr.P.C. that they have been falsely implicated and recovery alleged by prosecution is false and concocted. In his statement under section 313 Cr.P.C. accused appellant Sageer Ahmad further stated that C.B.I. has arrested him from his house before alleged recovery.

No evidence was adduced on behalf of accused in defence.

Learned learned Additional Session Judge/Fast Track Court No. 4, Firozabad heard arguments of the parties and passed impugned judgement dated 22.1.2008 and order dated 25.1.2008 whereby he has convicted accused appellant Sageer Ahmad and Naresh Kumar for offence punishable under section 8 read with section 21C of N.D.P.S. Act and has sentenced each of them to rigorous imprisonment for 14 years with fine of Rs. one lac with provision that in default of payment of fine each of them shall undergo further imprisonment for one year.

No appeal is reported to have been filed by accused Naresh Kumar against impugned judgement and order passed by learned Additional Session Judge/Fast Track Court No. 4, Firozabad.

Learned counsel for accused appellant Sageer Ahmad contended that he is not pressing this appeal on the point of conviction. He is pressing this appeal on the point of sentence only.

Learned counsel for accused appellant Sageer Ahmad contended that sentence awarded by trial court to accused appellant is excessive.

Learned A.G.A. as well as learned counsel for C.B.I. contended that sentence awarded by trial court is appropriate and no interference is required in impugned judgement and order.

I have considered the submissions made by learned counsel for the parties.

The quantity of 940 grams Smack (Heroin) alleged to have been recovered from possession of accused appellant is commercial quantity according to table of N.D.P.S. Act.

Section 21 of N.D.P.S. Act, 1985 provides that "whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable in case of commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees."

Section 32(B) of N.D.P.S. Act provides that "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 their 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."

Perusal of impugned judgement and order passed by learned Additional Session Judge/Fast Track Court No. 4, Firozabad shows that accused appellant Sageer Ahmad has stated before trial court that he is a labourer and he has small children. None is to look after his children. Kindly lenient view should be taken for awarding punishment.

According to Section 21 of N.D.P.S. Act minimum punishment in respect of commercial quantity is rigorous imprisonment of ten years and fine of one lac rupees but learned trial court has sentenced accused appellant with rigorous imprisonment for 14 years and fine of Rs. one lac. No previous conviction or previous criminal history of accused appellant has been shown by prosecution. Therefore considering provisions of Section 32(B) of N.D.P.S. Act, 1985 as well as all facts and circumstances of the case, I am of the view that sentence of rigorous imprisonment of 14 years awarded by trial court is excessive. There appears no reasonable ground to award higher punishment than minimum punishment prescribed.

In view of above I am of the view that sentence of rigorous imprisonment for 14 years awarded by trial court should be reduced to ten years.

Appeal filed by accused appellant is allowed accordingly on the point of sentence. Sentence of rigorous imprisonment of 14 years awarded by trial court is reduced to ten years. Rest part of judgement and order passed by trial court is upheld.

Send copy of judgement to trial court for sending revised conviction warrant.

Lower court record shall be returned to the concerned court immediately.