$-2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. A. 1334/2011
% Date of decision: 10th March, 2014
ANIL VISHWASH ..... Appellant
Through: Ms.Rakhi Dubey, DHCLSC.
Appellant in J/c.
versus
STATE OF THE NCT OF DELHI ..... Respondent
Through: Mr.O.P.Saxena APP for the State
with SI Chhail Bihari Sharma,
PS Hazrat Nizamuddin.
CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA
DEEPA SHARMA, J. (Oral)
1. In the present case, the appellant has been convicted for the offence punishable under Section 20(b) (ii) (C) of the NDPS Act vide judgment dated 23rd July, 2011 in case FIR No. 388/2009, Sessions Case No. 52A/2009, Police Station Hazarat Nizamuddin and vide order on sentence dated 26th July, 2011, the accused/appellant was sentenced to undergo rigorous imprisonment for a period of 15 years and a fine of Rs.1,50,000/- CRL. A. No. 1334/2011 Page 1 of 5 (Rupees One Lac Fifty Thousand) and in case of non payment of fine, he was directed to further undergo simple imprisonment for a period of one year. The appellant was also extended the benefit of Section 428 Cr.P.C. for the period of imprisonment already undergone by him.
2. The present appeal has been filed by the appellant challenging the order of conviction and sentence, however, during the course of arguments, learned counsel for the appellant upon instructions of the appellant, who is present in the court in judicial custody has conceded the conviction of the accused/appellant and has argued only on the point of sentence. It is submitted that the accused/appellant is not a previous convict and his family members comprises of his wife and young teenage son and the appellant is the sole bread earner of the family. Learned counsel for the appellant prays to reduce the order on sentence in view of above stated facts.
3. Learned Additional Public Prosecutor has argued that high quantity of Charas has been recovered from the possession of the accused/appellant as he was found to be in possession of 22 kgs of Charas which is a very high commercial quantity and the appellant does not deserve any leniency.
4. I have heard the arguments of both the parties and have given due consideration to the facts and circumstances of the case. CRL. A. No. 1334/2011 Page 2 of 5
5. In the present case, at about 8.15pm, at ring road, Indraprastha park opposite Nizamuddin bridge, the appellant was apprehended by police officials of the special staff of South East district which was on border line near Sarai Kale Khan on a secret information. He was found in possession of 22kgs of Charas in contravention of provisions of Section 8 (C) of NDPS Act which is an offence punishable under Section 20 (b) (ii) (C) of NDPS Act.
6. All the prosecution witnesses had duly supported the prosecution's case. The appellant was apprised of his legal rights and he was given an opportunity for the search to be conducted in the presence of Magistrate or a Gazatted officer. A legal notice under Section 50 of NDPS Act was also served upon the accused/appellant in this regard. PW3/Shiv Charan offered his search to the appellant before conducting search of the accused/appellant. FSL report also proves that the recovery articles were Charas. The FSL report is Ex.PW9/C. There is nothing in the cross examination of these witnesses to create any doubt in their testimonies. They are reliable witnesses and does not seem to have any enmity with the accused/appellant to implicate him falsely in this case.
7. Prosecution has thus fully proved its case by producing all the CRL. A. No. 1334/2011 Page 3 of 5 material evidence on record. Even otherwise during the arguments, the accused/appellant who is present in the court with his counsel has not challenged the conviction.
8. The prosecution has not disputed that the accused/appellant is not a previous convict. It is also not disputed that he has a family to maintain and he is the sole bread earner. Keeping all these facts and circumstances of the case, I reduce the sentence of the accused/appellant to 10 years from 15 years as awarded by learned Special Judge. It is ordered that in case of refusal or failure of payment of fine of Rs.1,50,000/- by the appellant which is ordered to be paid vide order on sentence dated 26th July, 2011 under Section 20 (b) (ii) (C) of NDPS Act by the learned Special Judge, NDPS Act, the appellant shall further undergo simple imprisonment for a period of six months. Benefit of Section 428 Cr.P.C. be also granted to the appellant.
9. In view of above, while upholding the judgment dated 23 rd July, 2011 passed by learned Special Judge, NDPS Act, New Delhi, the order on sentence dated 26th July, 2011 is modified to extent that the appellant is sentenced to undergo rigorous imprisonment for a period of 10 years and a fine of Rs.1,50,000/- (Rupees One Lac Fifty Thousand) and in case of non payment of fine, he shall further undergo simple imprisonment for a period CRL. A. No. 1334/2011 Page 4 of 5 of six months for the offence punishable under Section 20 (b) (ii) (C) of NDPS Act.
10. The appeal stands disposed of with the above modifications.
11. Trial court record be sent back along with a copy of this order.
12. Registry is also directed to send a copy of the order to the Superintendent, Central Jail, Tihar for compliance and to supply the same to the appellant.
DEEPA SHARMA, J MARCH 10, 2014 j CRL. A. No. 1334/2011 Page 5 of 5