Ram Avtar vs State Of U.P.
2017 Latest Caselaw 4675 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Reserved On: 10.7.2017
 
Delivered On: 20.9.2017
 
Court No. - 52
 
Case :- CRIMINAL APPEAL No. - 8094 of 2007
 

 
Appellant :- Ram Avtar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- R.K. Vaish,Anil Srivastava,Avanish Tripathi,B.P.S. Kashyap,S.S.Sachan
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Rajul Bhargava,J.

Heard Sri S.S. Sachan, learned counsel for the appellant, learned AGA for the State- respondent and perused the records.

The instant appeal has been filed by the appellant against the judgement and order dated 12.10.2007 passed by Additional District and Sessions Judge, Fast Track Court No. 5, Badaun in Special Session Trial No. 122 of 2006 (State vs. Ram Avtar) arising out of Case Crime No. 240 of 2006, under section 8/18 NDPS Act (in short the Act), P.S. Binavar, District Badaun whereby the appellant was convicted under section 8/18 of the Act and was awarded 14 years R.I. and fine of Rs. One lac and in default of fine to further undergo one year simple imprisonment.

The prosecution case in brief is that on 3.7.2006 S.I. Itwari Lal along with other police personnel left police station at about 1.15 pm for search of an accused, when they were present at the T-point of Vijay Nagla they received an information from the informer that a person namely Sakir @ Kallu involved in unknown smuggling is about to carry a huge quantity of opium and he is likely to go towards the village of Usaita. Upon this information, the police party assembled near railway crossing and waited for the appellant. In the meantime, at about 2.40 pm the appellant was arrested by the police and from his possession 4.800 kg. of opium was recovered. He was duly given an option as mandate under section 50 of the Act for his search before the Magistrate or Gazetted Officer to which the appellant refused and asked to take his search. The sample of 100 gm of opium was drawn, which was sent for Forensic Science Laboratory and after analyzing the same was found to be opium a contraband punishable under the Act. The appellant was charged under section 8/18 of the Act. The prosecution examined five witnesses to prove its case. Based on it, the trial court convicted the appellant and sentenced him to undergo as stated hereinabove.

Learned counsel after arguing at some length fairly conceded that he does not want to press the instant appeal on merit and he has also sought instruction in this behalf from his client, who is in jail through his parokar and he has now confined his argument only to the quantum of punishment that has been awarded to the appellant under section 8/18 of the Act. He has submitted that minimum punishment as mandate under section 8/18 of the Act is 10 years and fine of Rs. One lac.

Learned counsel has submitted that in view of the mandatory provisions contained under section 32-A of the Act, in case, the trial court awarded sentence more than the minimum sentence as provided under section 20 of the Act the trial court had to record special reasons in support thereof. However, the trial court has failed to perform statutory duty as required under section 32-A of the Act while imposing sentence of 14 years on the appellant, which is too excessive and was not warranted in the facts and circumstances of the case especially when the trial court was apprised the condition of the appellant that there is no earning member in his family besides his, has aged parents. He has two small children and his wife and the entire responsibility of earning livelihood is on him. It has been also noted in the impugned judgment and order that the criminal history of the appellant was also called for from the concerned police station, which indicated that the appellant had no criminal history at all and was never involved in any criminal case and it was the first offence, therefore, in view of these mitigating circumstances also the trial judge has imposed sentence of 14 years instead of minimum sentence of 10 years as provided under section 20 of the Act.

In these circumstance learned counsel has prayed that the sentence awarded to the appellant may be reduced as follows:-

(1) the punishment of 14 years that has been awarded may be reduced to 11 years.

(2) the punishment in default of fine of Rs. one lac may be reduced from one year to three months.

In support thereof, learned counsel has submitted that the appellant is continuously in jail from the date of his arrest since 3.7.2006 and was not released on bail as there was no one in his family to do proper pairvi of the case on his behalf.

Learned AGA opposed the prayer of the appellant and stated that the trial judge has not committed any manifest error of law or irregularity by imposing sentence of 14 years on the appellant.

The right of the court to reduce the punishment has been discussed by Hon'ble Apex court in the case of Baldev Singh vs. State of Haryana reported in 2015 (91) ACC 912 wherein the Hon'ble Apex Court after taking into account the facts and circumstances of the case and also mitigating circumstances as pointed out, had reduced the sentence of imprisonment imposed upon the appellant from 12 years to 10 years. Therefore, in the instant case also considering the aforesaid submission made by learned counsel for the appellant and fact that the appellant is already undergone more than 11 years of incarceration in jail, I may record that the appellant is entitled to the relief that has been prayed as above at serial no. 1.

Hon'ble Apex Court in so many judgements have clearly stated that in the given case the punishment on default of payment of fine can be reduced. The leading judgement of the Hon'ble Apex Court in this regard is Shanti Lal Vs. State of M.P., reported in 2007 (Vol 11) SCC Page 243, in which issue/question as to whether the sentence on default of payment of fine may be reduced or not has been considered and discussed. The Hon'ble Supreme Court in para 36 and 37 of the aforesaid judgement has observed and held as below:-

"36. We are mindful and conscious that the present case is under the NDPS Act. Section 18 quoted above provides penalty for certain offences in relation to opium poppy and opium. Minimum fine contemplated by the said provision is rupees one lakh fine, which shall not be less than one lakh rupees. It is also true that the appellant has been ordered to undergo substantive sentence of rigorous imprisonment for ten years which is minimum. It is equally true that maximum sentence impose-able on the appellant is twenty years. The learned counsel for the State again is right in submitting that clause (b) of sub-section (1) of Section 30 Cr.P.C authorizes the Court to award imprisonment in default of payment of fine up to one-fourth term of imprisonment which the Court is competent to inflict as punishment for the offence. But considering the circumstances placed before us on behalf of the appellant-accused that he is very poor; he is merely a carrier; he has to maintain his family; it was his first offence; because of his poverty, he could not pay the heavy amount of fine (rupees one lakh) and if he is ordered to remain in jail even after the period of substantive sentence is over only because of his inability to pay fine, serious prejudice will be caused not only to him, but also to his family members who are innocent. We are, therefore, of the view that though an amount of payment of fine of rupees one lakh which is minimum as specified in Section 18 of the Act cannot be reduced in view of the legislative mandate, ends of justice would be met if we retain that part of the direction, but order that in default of payment of fine of rupees one lakh, the appellant shall undergo rigorous imprisonment for six months instead of three years as ordered by the trial court and confirmed by the High Court.

37. For the reasons aforesaid, the appeal is partly allowed, conviction recorded and sentence imposed on the appellant to undergo rigorous imprisonment for ten years is confirmed. An order of payment of fine of rupees one lac is also upheld. But an order that in default of payment of fine, the appellant shall undergo rigorous imprisonment for three years is reduced to rigorous imprisonment for six months. To that extent, the appeal filed by the appellant is allowed. If the appellant has undergone substantive sentence of rigorous imprisonment for ten years as also rigorous imprisonment for six months as modified by us in default of payment of fine, the appellant shall be set at liberty forthwith unless he is required in any other offence. If the appellant has not completed the said period, he will be released after the period indicated herein above is over. The appeal is accordingly disposed of."

In view of the law propounded by Hon'ble Apex Court and the circumstances that are being mentioned by the appellant as above can be taken into consideration and on that basis, punishment that has been awarded for one year in default of payment of fine can be reduced from one year to three months.

I find that the appellant is a very poor person and nobody is there in his family to look after the children and his wife. I deem it fit and proper to reduce the substantive sentence of 14 years to 11 years and also to reduce the punishment that has been awarded in default of payment from one year to three months.

The appeal against conviction is dismissed whereas quantum of punishment that has been awarded is modified to 11 years rigorous imprisonment from 14 years rigorous imprisonment and quantum of punishment in default of payment of fine that has been awarded for one year additional imprisonment is reduced to three months.

It is further ordered that in case 11 years rigorous imprisonment is completed by the appellant, then his punishment for default in payment will start from date of completion of 11 years rigorous imprisonment and after completion of period of default sentence i.e. three months, he will be set at liberty forthwith unless wanted in any other matter.

Accordingly, the appeal is partly allowed.

The seized contraband shall be destroyed by the officer concerned in accordance with the notifications issued under Section 52A of The Narcotic Drugs and Psychotropic Substances Act.

Let a copy of this judgement and order be sent to the court below for ensuring its compliance within a week.

Order Date :- 20.9.2017

Dhirendra/