AI Structured Summary
Not yet generated for this judgment
Judgment
Present is a criminal appeal preferred by the appellants under Section 374(2) of the Code of Criminal Procedure, 1973, questioning the judgment of conviction and order of sentence dated 26.11.2019 passed by the learned Special Judge (NDPS Act), Rajnandgaon, in Special NDPS Case No.01/2018, whereby the appellants have been convicted for the offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “the NDPS Act”) and sentenced to undergo rigorous imprisonment for a period of five years each and to pay a fine of Rs.20,000/- each, and in default of payment of fine, to further undergo rigorous imprisonment for six months each.
The prosecution case, in brief, is that on 08.12.2017, Inspector Rajveer Singh (PW-2), who was posted at Base Camp Job in the ITBP, while on patrolling duty along with other members of the team, proceeded towards the Maaldongri, Vicharpur and Gweland area. On the way, two persons were noticed travelling on a motorcycle and carrying a plastic bag. They were intercepted and, upon enquiry and checking of the bag, a substance suspected to be ganja was found therein.
The persons disclosed their names as Sonuram Sabarsathi and Lakhanlal Gangboir and allegedly stated that they were transporting ganja from Maharashtra. The search party seized the contraband from their possession. Thereafter, a Dehati Nalishi, Ex.P-15, was recorded by Inspector Rajveer Singh and the same was forwarded to the Investigating Officer, Vijay KumarMishra (PW-13). Notice under Section 91 of the Cr.P.C. was issued to the accused persons, but they failed to produce any document evidencing lawful possession of the contraband. Consent for search was obtained. An identification panchnama of the seized ganja, Ex.P-9, was prepared in the presence of the witnesses. The recovery panchnama, Ex.P-10, was also prepared and a witness competent to undertake the weighing was called. Verification panchnama of the weighing apparatus, Ex.P-11, was prepared.
Upon weighing, the ganja along with the bag was found to be 4.680 kilograms and the corresponding weighment panchnama, Ex.P-12, was prepared. The seized ganja was thereafter homogenised at the spot and panchnama Ex.P-13 was prepared. The contraband was seized vide seizure memo Ex.P-14 and a specimen sealpanchnama, Ex.P-2, was prepared. The seized material was deposited in the malkhana of the police station and was thereafter forwarded to the State Forensic Science Laboratory for chemical examination. The accused persons were arrested and FIR Ex.P-46 was registered. Inventory proceedings were conducted by the Tahsildar and the relevant documents were marked as Ex.P-32 and Ex.P-33, while photographs were marked as Ex.P-34. Samples were drawn and report Ex.P-36 was prepared. The sample packets were thereafter forwarded to the FSL, from where report Ex.P-42 was received, confirming the presence of ganja in the samples. After completion of investigation, statements of the witnesses under Section 161 of the Cr.P.C. were recorded andcharge-sheet was filed before the learned trial Court.
The learned trial Court framed charge against the appellants for the offence punishable under Section 20(b)(ii)(B) of the NDPS Act. The appellants denied the charge and claimed to be tried. 6. In order to establish the charge, the prosecution examined as many as 13 witnesses and relied upon the documentary evidence brought on record. The statements of the appellants under Section 313 of the Cr.P.C. were recorded, wherein they denied the incriminating circumstances appearing against them and pleaded false implication.
Upon appreciation of the oral and documentary evidence, the learned trial Court found the charge proved and accordingly convicted and sentenced the appellants in the manner stated hereinbefore. Hence, the present appeal.
Learned counsel appearing for the appellants submits that the appellants are innocent and have been falsely implicated. It is, however, submitted that, in view of the evidence available on record, the appellants are not assailing their conviction in the present appeal and are confining their challenge to the quantum of sentence. It is submitted that the appellants have already undergone incarceration for a period of more than five months; the alleged offence pertains to the year 2017; the quantity recovered is 4.680 kilograms, which falls within theintermediate quantity; no minimum sentence is prescribed for the offence under Section 20(b)(ii)(B) of the NDPS Act; the appellants have family responsibilities; and they are ready and willing to deposit the fine imposed by the learned trial Court. On these grounds, learned counsel prays that the substantive sentence may be reduced to the period already undergone.
Per contra, learned State counsel opposes the prayer and submits that the appellants were found in possession of 4.680 kilograms of ganja, which was being transported from Maharashtra to Chhattisgarh, and the offence involves possession and transportation of a narcotic substance. It is contended that the offence has a deleterious effect upon society and, having regard to the nature and gravity of the offence, no further leniency ought to be shown.
I have heard learned counsel for the parties and perused the record of the trial Court.
The appellants have consciously confined the challenge in the present appeal to the question of sentence. Nevertheless, this Court has examined the evidence on record to satisfy itself as to the sustainability of the conviction. From the evidence of PW-13, Vijay Kumar Mishra, the Investigating Officer, it is established that the appellants were intercepted while travelling on a motorcycle and that ganja-like substance was recovered from their possession. The search and seizure proceedings were conducted and the relevant panchnamas were prepared. evidence of Arvind Kumar (PW-1) and Rajveer Singh (PW-2), who were members of the seizure party, corroborates the recovery of the contraband from the appellants. Sufenil Patil (PW-3) has proved the weighment of the seized substance, which was found to be 4.680 kilograms. Preeti Larokar (PW-12), the Naib Tahsildar, has proved the inventory and sampling proceedings. The forensic evidence also corroborates the nature of the seized substance.
Upon a careful examination of the evidence, this Court finds no material contradiction or infirmity of such nature as would render the finding of guilt recorded by the learned trial Court unsustainable. The prosecution evidence, when considered in its entirety, establishes the recovery of the contraband from the possession of the appellants. The finding of conviction recorded by the learned trialCourt, therefore, does not warrant interference. Accordingly, the conviction of the appellants under Section 20(b)(ii)(B) of the NDPS Act is affirmed.
The question that now falls for consideration is as to whether, in the facts and circumstances of the present case, the substantive sentence imposed upon the appellants warrants modification. The principles governing sentencing are well settled. The Supreme Court in the matter of Raj Bala v. State of Haryana & Ors., (2016) 1 SCC 463, wherein the Court observed that the discretion relating to sentence must be exercised on reasonable and rational parameters and that the punishment should be proportionate to the gravity, nature and manner of commission of the offence. It has been held as under:
1.In Gopal Singh v. State of Uttrakahand,(2013) 7 SCC 545, while focusing on the gravity of the crime and the concept of proportionality as regards the punishment, the Court had observed:-
“Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect — propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasise, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment.” [Emphasis added]
2.Seven years prior to that, in Shailesh Jasvantbhai v. State of Gujarat[2], it has been held that:-
“7.The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of “order” should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: “State of criminal law continues to be—as it should be—a decisive reflection of social consciousness of society.” Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.
8.Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N.[3]” [Emphasis supplied]
And again:-
“The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and the victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society’s cry for justice against the criminal”.”
The Court further cautioned that sentencing discretion cannot be permitted to operate in the realm of mere sympathy or fancy. At the same time, the sentencing process requires the Court to consider not merely the offence but also the offender and the circumstances relevant to the question of punishment. In Mohammad Giasuddin v. State of Andhra Pradesh, (1977) 3 SCC 287, the Supreme Court explained that a proper sentence is the result of consideration of several factors, including the nature of the offence, aggravating and mitigating circumstances, antecedents, age, social and family background, prospects of rehabilitation and the need for deterrence. The Court emphasised that sentencing is required to be personalised and that the reformative component cannot bewholly excluded from consideration.
Thus, the sentencing exercise requires a balancing of competing considerations. The Court has to take into account the gravity and societal impact of the offence while, at the same time, considering the relevant mitigating circumstances concerning the offender. The sentence must neither be unduly harsh nor disproportionately lenient, but must reflect a reasoned application of judicial discretion.
In the present case, the offence was committed in the year 2017. The appellants have already undergone incarceration for a period of more than five months. The quantity of ganja recovered from their possession is 4.680 kilograms. The said quantity is an intermediate quantity and the provision under which the appellants have been convicted does not prescribe any minimum term of imprisonment. The appellants have also expressed their willingness to deposit the fine imposed by the learned trial Court. There is nothing on record to indicate that the appellants have any previous criminal antecedents. The aforesaid circumstances, when considered cumulatively, constitute relevant factors for determining the appropriate sentence.
This Court is conscious of the fact that offences under the NDPS Act are serious in nature and that the societal interest in curbing the transportation and possession of narcotic substances cannot be overlooked. At the same time, the sentencing discretion conferred upon the Court by the statute has to be exercised upon consideration of the facts and circumstances peculiar to the case. The absence of a statutory minimum sentence under Section 20(b)(ii)(B) of the NDPS Act leaves the Court with the discretion to determine an appropriate sentence within the statutory range.
Having regard to the totality of the circumstances, the year of occurrence, the quantity involved, the period of incarceration already undergone, the absence of any minimum prescribed sentence for the offence, the absence of any material indicating previous criminal antecedents, and the willingness of the appellants to pay the fine imposed, this Court is of the considered view that the substantive sentence deserves to be modified.
Consequently, while maintaining the conviction of the appellants for the offence punishable under Section 20(b)(ii)(B) of the NDPS Act, the substantive sentence imposed upon each of them is modified and reduced to the period of imprisonment already undergone. The sentence of fine of Rs. 20,000/- imposed upon each appellant by the learned trial Court, along with the default sentence, is maintained. The appellants are reported to be on bail. Their bail bonds shall remain operative for the statutory period as applicable under the relevant provisions of law.
Accordingly, the appeal is partly allowed to the extent indicated hereinabove. The record of the learned trial Court be transmitted back forthwith along with a copy of this judgment for information and necessary compliance.