Sanjeev Kohli vs State Of U.P.
2017 Latest Caselaw 3190 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 

 
Case :- CRIMINAL APPEAL No. - 512 of 1995
 

 
Appellant :- Sanjeev Kohli
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Arun Sinha
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Sheo Kumar Singh-I,J.

1. Challenge in the instant criminal appeal is the judgment and order dated 26.09.1995 passed by Sessions Judge, Barabanki, in Sessions Trial No.136 of 1990 - State vs. Sanjeev Kohli, whereby and whereunder the accused/appellant was found guilty under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ''NDPS Act'), Police Station Barabanki and was sentenced to undergo rigorous imprison for a period of 11 years with fine of Rs.1,00,000/- with default stipulation of two years' rigorous imprisonment.

2. In a nutshell, the brief of the case is that on 08.03.1990 Constable Devendra Yadav was on duty with Constable Deep Chand Prasad, Constable Satya Narain Yadav, Constable Wazi Husain Rizvi and two Home Guards namely Vikarma Yadav and Ram Narain Pandey. They were escorting the train Delhi bound Vaishali Express. When the train left at about 08.00 PM from Gonda railway station, the police personnel saw two cardboard cartoons beneath the birth of ticket Inspector in front of door and asked the passengers but none claimed them. When they were opening the cartoons, one of the passenger sitting in the coach came near and asked them to come aside and admitted that the boxes belong to him and he offered Rs.5,000/- to the police personnel. On their refusal, one Train Superintendent arrived and asked to leave the accused who had introduced himself as Sanjeev Kohli and took Constable Satya Narain to his coach and handed over a memo about unclaimed property. In the meantime, the train reached at Barabanki railway station at abaout 10.05 PM where SHO Police Station GRP Barabanki along with other Constables were on duty on the platform and the entire incident was narrated to the Inspector Incharge. The Inspector Incharge inquired the matter with the accused Sanjeev Kohli who admitted that two cartoons contain Charas and after this information, senior officers of the department were intimated for their availability. After intimating the accused regarding search and right to be searched before the competent officer, the SHO on the consent of the accused took the search and found that cartoons contain three polythene packets containing Charas which was kept in wooden sound box. A sample was taken out from the recovered Charas and was sealed in two packets after preparing the specimen seal. The contraband which was recovered from the possession of the accused appellant was again kept in packets and sealed in the sound boxes. The case was registered in the General Diary and SI Ram Narain was directed to go through with the investigation. Later on, the investigation was transferred to SI Amar Nath Singh. After recording the statement of the witnesses and obtaining the report from the custom department for assessing the value of the recovered contraband, it was sent to Forensic Science Laboratory for analysis where the recovered item was Charas. After investigation, the charge sheet was submitted against the accused appellant and after taking the cognizance, a charge under Section 8/20 of the NDPS Act was framed against the accused appellant to which he pleaded not guilty and claimed for trial.

3. After examining the prosecution witnesses, learned trial court found the accused appellant guilty under Section 8/20 of the NDPS Act and convicted him as above. Aggrieved by the order, this appeal has been filed with the submission that the appellant was not informed about the reasons for his arrest nor he was given copy of the recovery memo. Learned counsel for the appellant has submitted that the appellant accused was travelling from Muzaffarpur to New Delhi by Vaisali Express and GRP personnel making search in the compartment asked him to open his suitcase and expected some money and on refusal they asked him to accompany and when the train arrived at Barabanki platform he got down on the platform where with the connivance of other police personnel of Barabanki he was falsely implicated in the present case.

4. In order to prove the prosecution's case, the prosecution has examined PW-1 SI Ram Pratap Tripathi, PW-2 Constable Devendra Yadav, where these witnesses have stated that on 08.03.1990 when they were posted at Barabanki GRP and were busy in the patrolling of the platform at about 10.05 PM Delhi bound Vaishali Express arrived at platform no.1 and police personnel of GRP, who were on train for escorting duty, came out with accused who had one suitcase and two big packets and after inquiry about his luggage he admitted that these articles belong to him. He was told by the Constable on duty that two packets contain Charas and then he was also informed regarding his search and preparation of recovery memo before the Magistrate for which he submitted that he has no objection if the search is made by the Inspector Ram Pratap Tripathi. In the presence of the public witnesses namely Ram Raj and Jagdish search was made and in two wooden sound boxes, three packets of polythene in each sound box containing Charas was recovered. The polythene packets were opened and by smell it appeared to be Charas. Each packet was about one kilogram of weight and thus total six kilograms Charas was recovered from the possession of the accused appellant. 15 grams of Charas was taken out and sealed separately for test examination and after preparing the recovery memo and telling the accused the reasons of arrest, he was arrested. The sealed cover sample Ext. Ka-9 was sent to chemical examination where it was found the contraband article to be Charas.

5. The appellant was found guilty under section 8 read with Section 20 of the NDPS Act. Sections 8, 20 and 50 of the NDPS Act provide as follows:-

"8. Prohibition of certain operations.--No person shall--

(a) cultivate any coca plant or gather any portion of coca plant; or

(b) cultivate the opium poppy or any cannabis plant; or

(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance,except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the Rules or Orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:

Provided that, and subject to the other provisions of this Act and the Rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf:

Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes."

"20. Punishment for contravention in relation to cannabis plant and cannabis.--Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder-

(a) cultivates any cannabis plant; or

(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable-

(i) where such contravention relates to Clause (a) with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees; and

(ii) where such contravention relates to Sub-clause (b),-

(A) and involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine, which may extend to ten thousand rupees, or with both;

(B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;

(C) and involves 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:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

"50. Conditions under which search of persons shall be conducted.--

(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

3[(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section100 of the Code of Criminal Procedure, 1973 (2 of 1974).

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.

(ii) Provisions of Section 50 of the Act do not apply to any search or seizure where the article was not being carried on the person of the accused; State of Rajasthan versus Tara Singh, (2011)11 SCC 559: 2011 (9) SLT 638: 2011 (3) SCC (Cr)407.

(iii) Section 50 can be invoked only in cases where the drug/narcotic/NDPS substance is recovered as a consequence of the body search of the accused. In case, the recovery of the narcotic is made from a container being carried by the individual, the provisions of section 50 would not be attracted; Jarnail Singh v. State of Punjab, AIR 2011 SC 964:(2011) 3 SCC 521: JT 2011(2) SC 120: (2011) 2 SCALE 401: 2011 Cr.LJ 1738.

(iv) Section 50 is applicable only where search of a person is involved and said section is not applicable nor attracted where no search of a person is involved. Thus search and recovery from a bag, brief case, container, etc., does not come within the ambit of section 50 of the Act; Ajmer Singh v. State of Haryna, (2010) 3 SCC 746: JT 2010 (2) SC 175: (2010) 2 SCALE 362."

6. Admittedly, the contraband Charas was seized on 08.03.1990. In the year 2001, there was certain amendment with regard to quantity of the material which has been defined as follows:-

2. (viia) "commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette;

7. Section 2(xxiiia) of the NDPS Act defines small quantity. It reads as follows:

"2. (xxiiia) "small quantity", in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette."

8. At this juncture, it is appropriate to refer to the definition of cannabis (hemp) as contained in Section 2(iii) of the NDPS Act:

"(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;

(b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and

(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom."

9. The analysis and notification dated 19.10.2001 reveal that the contraband which is said to be recovered from the possession of the appellant accused is more than commercial quantity.

10. Learned counsel for the appellant has submitted that there was no proper service of notice under Section 50 of the NDPS Act on the appellant and thus the procedure as prescribed in the Act has not been followed.

11. Learned counsel for the State has submitted that after apprehension of the appellant he was offered to get himself searched in the presence of a gazetted officer or a Magistrate before conducting his search. This clearly shows that the contents of notice under Section 50 of the NDPS Act were duly explained to the appellant before conducting his search and thus there is mandatory compliance of Section 50 of the NDPS Act by the police officials before whom the contraband was found trustworthy and their testimony coupled with Forensic Science Laboratory report, brings the case of the prosecution within four corners of the alleged commission of offence which culminated into the conviction of the appellant. It has further been contended by learned counsel for the State that the prosecution has successfully proven the guilt of the appellant.

12. Reliance has been placed by learned counsel for the appellant on Dilip v. State of M.P. reported in (2007) 1 SCC 450 to argue that the provisions of Section 50 of the NDPS Act might not have been required to be complied with so far as the search of the cartoons is concerned, but keeping in view the fact that the person of the accused was also searched, it was obligatory on the part of the officer to comply with the said provision.

13. If I analyze the facts of the case and the statements of PW-1 and PW-2 it is found that contraband item i.e. 6 kg Charas was found in the cartoons which were claimed by the appellant during the interrogation and further the statements of the prosecution witnesses reveals that the accused appellant offered some allurement to leave the matter but of no avail. Since the contraband was found in the cartoons, the above citation is not applicable in the present case.

14. Learned counsel for the appellant has relied upon the case of State of Rajasthan v. Parmanand and another reported in (2014) 5 SCC 345, where the opinion has been narrated as under:-

"If merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application."

Section 50 of the NDPS Act has only application in cases if there was any personal search.

15. Vijaysinh Chandubha Jadeja v. State of Gujarat reported in (2011) 1 SCC 609, provides that if a person intended to be searched of his right under Section 50 of the NDPS Act has been apprised then the provisions of Section 50 of the NDPS Act are said to have been complied with. The suspect may or may not chose the right provided to him under the aforesaid provision.

16. The NDPS Act was enacted to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and Regulation of operations relating to narcotic drugs and psychotropic substances. The Court had occasion to consider the provisions of NDPS Act in large number of cases. This Court has noted that the object of NDPS Act is to make stringent provisions for control and Regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. The Court in State of Punjab v. Balbir Singh MANU/SC/0436/1994 : 1994 (3) SCC 299, in paragraph 15 has made the following observations:

"15. The object of NDPS Act is to make stringent provisions for control and Regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Section 42(1). To that extent they are mandatory. Consequently the failure to comply with these requirements thus affects the prosecution case and therefore vitiates the trial."

17. To the similar effect are the observations of the Court in Saiyad Mohd. Saiyad Umar Saiyed and Ors. v. The State of Gujarat MANU/SC/0695/1995: (1995) 3 SCC 610. Following was stated in paragraph 6 of the said judgment:

"6. It is to be noted that under the NDPS Act punishment for contravention of its provisions can extend to rigorous imprisonment for a term which shall not be less than 10 years but which May extend to 20 years and also to fine which shall not be less than Rupees one lakh but which may extend to Rupees two lakhs, and the court is empowered to impose a fine exceeding Rupees two lakhs for reasons to be recorded in its judgment. Section 54 of the NDPS Act shifts the onus of proving his innocence upon the accused; it states that in trials under the NDPS Act it may be presumed, unless and until the contrary is Proved, that an accused has committed an offence under it in respect of the articles covered by it "for the possession of which he fails to account satisfactorily". Having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable, the legislature has enacted the safeguard contained in Section 50. To obviate any doubt as to the possession by the accused of illicit articles under the NDPS Act, the accused is authorised to require the search for such possession to be conducted in the presence of a Gazetted Officer or a Magistrate."

18. In the present case, Sections 42 and 43 are relevant which are extracted as below:

42. Power of entry, search, seizure and arrest without warrant or authorisation.-(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other Article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other Article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other Article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other Article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V A of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:

Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under Sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.

43. Power of seizure and arrest in public place.-Any officer of any of the departments mentioned in Section 42 may-

(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or Article liable to confiscation under this Act, any document or other Article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other Article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V A of this Act;

(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.

Explanation.-For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public."

19. Explanation to Section 43 defines expression "public place" which includes any public conveyance. The word "public conveyance" as used in the Act has to be understood as a conveyance which can be used by public in general.

20. While deciding the case of State of Rajasthan v. Jag Raj Singh reported in Manu/SC/0704/2016, Hon'ble the Apex Court in Paragraph 20 has given the following guidelines:-

"(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Code of Criminal Procedure and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.

(2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.

(2-B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction.

(2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.

To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.

(4-A) If a police officer, even if he happens to be an "empowered" officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Code of Criminal Procedure fails to strictly comply with the provisions 'of Sections 100 and 165 Code of Criminal Procedure including the requirement to record reasons, such failure would only amount to an irregularity.

(4-B) If an empowered officer or an authorised officer Under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of Code of Criminal Procedure namely Sections 100 and 165 Code of Criminal Procedure and if there is no strict compliance with the provisions of Code of Criminal Procedure then such search would not per se be illegal and would not vitiate the trial.

The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.

(5) On prior information the empowered officer or authorised officer while acting Under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact.

(6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure Under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case."

21. The prosecution has further relied upon the case of Asim Adhikari v. State of U.P. reported in 1998 Cri. L.J. 2352 where it was held that where the quantity of Charas was so substantial that it was not likely to be planted, accused not disputed date, time and place of his arrest, it was a case of sudden recovery, evidence of arrest and recovery cannot be discarded, more so when the report of FSL was positive that recovered substance was Charas.

22. In T.T. Haneefa v. State of Kerala reported in 2005 (51) ACC 46 SC, it was held that where accused was given right to be searched in the presence of a Magistrate and he failed to opt it, there is no procedural illegality.

23. Section 43 of the NDPS Act provides as under:-

"43. Power of seizure and arrest in public place.-Any officer of any of the departments mentioned in Section 42 may -

(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or Article liable to confiscation under this Act, any document or other Article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other Article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V A of this Act;

(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.

Explanation.-For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.

24. Explanation to Section 43 defines expression "public place" which includes any public conveyance. The word "public conveyance" as used in the Act has to be understood as a conveyance which can be used by public in general.

25. While deciding the case, learned trial court has also relied upon the following citations:-

I. Danial Odemenam vs. R. Ramesh - 1995 Cr.L.J. 1134

II. Ram Dayal vs. Central Narcotic Bureau, Gwalior - 1993 (1) EFR 139

III. Ravindra Mehta vs. State - 1995(1) EFR 356

26. Learned counsel for the applicant has submitted that memo given by the Train Superintendent that the bags were unclaimed luggage had not been considered by the learned court below.

27. The perusal of the judgment reveals that the memo given by the Train Superintendent had been considered and it was found that it has not been proved. Further there is a positive statement of the prosecution witness that when the police personnel started to open the cartoons, the accused appellant came near them and offered some allurement for which the police personnel denied and later on this memo was given to one of the police constable. Thus, for want of any evidence on that point and for the reasons that the accused appellant claimed that packets, as his luggage and also offered something to police personnel provides an inference that the contraband belonged to the accused appellant.

28. Lastly, it has been contended by learned counsel for the appellant that appellant is presently suffering from serious disease and now completely bed ridden. A request has been made to take a very lenient view. An affidavit of Mr. Satish Kumar Kohli, father of the accused appellant, has been filed narrating the fact that the appellant fell seriously ill and was diagnosed as a case of Definite Multiple Sclerosis-I (Posers) and he was taken to the Department of Neurology of All India Institute of Medical Science, New Delhi, where he was admitted on account of his serious condition and since thereafter the appellant gradually became serious ill and remained under continuous treatment of various doctors in connection with serious illness and ultimately the appellant is totally paralyzed and confined to bed for the last ten years. It has further been submitted that the appellant has lost his speech, he cannot move his limbs, he cannot eat himself and he cannot do anything though it requires proof and even if proved, the Court has to decide the case on the basis of merit and minimum punishment provided for the offence.

29. This Court has to consider the punishment in accordance with law. The amount of contraband which was recovered from the possession of the accused appellant is six kilograms. Section 20(C) provides that if it involves commercial quantity then the punishment will be rigorous imprisonment for a term which shall not be less than 10 years but which may extend to 20 years and shall also be liable to file which shall not be less than Rs.1,00,000/- but which may extend to Rs.2,00,000/- provided that the Court may for the reasons to be recorded in the judgment impose a fine exceeding Rs.2,00,000/-. The analysis of Section also provides the minimum punishment to be of ten years.

30. In Sevaka Perumal and another v. State of Tamil Nadu (1991) 3 SCC 471 , after referring to the decision in Mahesh v. State of M.P. (1987) 3 SCC 80 , the Court observed that "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 serious threats. The Court further observed that if the Courts do not protect the injured, the injured would then resort to private vengeance and, 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."

31. In State of M.P. v. Saleem alias Chamaru and another (2005) 5 SCC 554 , the Court opined that the object of sentencing should be to protect society and to deter the criminal that bing the avowed object of law. It further ruled that it is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.

32. In Ravji alias Ram Chandra v. State of Rajasthan (1996) 2 SCC 175 the Court while giving emphasis on relevance of imposition of adequate sentencing in the social context observed thus:-

"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 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". In our view, if for such heinous crimes the most deterrent punishment for wanton and brutal murders is not given, the case of deterrent punishment will lose its relevance."

33. In State of Karnataka v/s Krishnappa AIR 2000 SC 1470 , a three- Judge Bench, while discussing about the purpose of imposition of adequate sentence, opined that protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence and the sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.

34. In Jameel v. State of Uttar Pradesh (2010) 12 SCC 532 , the trial court had convicted the appellant therein under Section 308 IPC along with another and punished them with two years rigorous imprisonment. In appeal, the conviction and sentence of the appellant were affirmed. By the time the matter came to be considered by Court, the Court observed as under: -

"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.

It is 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. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."

35. In Shyam Narain v/s State (NCT of Delhi) (2013) 7 SCC 77 , it has been ruled that primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes, for it serves as a deterrent. The Court observed, true it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. It has been further opined that while carrying out this complex exercise, it is obligatory on the part of the court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim.

36. In Guru Basavaraj v. State of Karnata a (2012) 8 SCC 734, the Court, discussing about the sentencing policy, had to say this: -

"There can hardly be any cavil that there has to be a proportion between the crime and the punishment. It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice which includes adequate punishment cannot be lightly ignored."

37. In Rattiram v. State of M.P. (2012) 4 SC 516 though in a different context, it has stated that: -

"the criminal jurisprudence, with the passage of time, has laid emphasis on victimology which fundamentally is a perception of a trial from the viewpoint of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regard and respect in certain countries.... it is the duty of the court to see that the victim's right is protected."

38. It is seemly to state here that though the question of sentence is a matter of discretion, vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in social life'.

39. In Ramji Dayawala & Sons (P.) Ltd. v. Invest Import AIR 1981 SC 2085: -

"when it is said that a matter is within the discretion of the court it is to be exercised according to well established judicial principles, according to reason and fair play, and not according to whim and caprice. `Discretion', said Lord Mansfield in R.v. Wilkes, ((1770) 98 ER 327), `when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, but legal and regular' (see Craies on Statute Law, 6 th Edn., p.273)."

40. In case of Narendra Champaklal Trivedi v. State of Gujarat reported in (2012) 7 SCC 80, Hon'ble the Apex Court held that where the minimum sentence is provided, it would not be at all appropriate to exercise jurisdiction under Article 142 of the Constitution of India to reduce the sentence on the ground of the so-called mitigating factors as that would tantamount to supplanting statutory mandate and further it would amount to ignoring the substantive statutory provision that prescribes minimum sentence for a criminal act.

41. In State of M.P. vs. Ayub Khan reported in (2012) 8 SCC 676, it was held that the legislature, in its wisdom, has fixed a mandatory minimum sentence for certain offences, should be complied with.

42. In the present case, the contraband article that had been seized is Charas and in view of the quantity of six kilograms of Charas a reasonable and minimum punishment has been provided in this case by learned trial court, therefore, no interference is required by this Court in the impugned judgment and the sentence inflicted by the learned trial court. The appeal lacks merit and deserves to be dismissed. It is accordingly dismissed.

43. Appellant is on bail. His bail is cancelled. He shall be taken into custody immediately to serve out the sentence.

44. Office is directed to communicate this order forthwith to the court concerned and also to send back the lower court record to ensure compliance.

Order Date :- 11.8.2017

A. Katiyar