Devendra Singh Chaudhary vs Union Of India Thru. D.R.I
2021 Latest Caselaw 91 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 31
 
Case :- CRIMINAL APPEAL No. - 1033 of 2013
 
Appellant :- Devendra Singh Chaudhary
 
Respondent :- Union Of India Thru. D.R.I
 
Counsel for Appellant :- Anil Kumar Sharma,Anil Kumar Sharma,Ayodhya Prasad Mishra
 
Counsel for Respondent :- I.B. Singh,Digvijay Nath Dubey
 
			connected with
 
Case :- CRIMINAL APPEAL No. - 1016 of 2013
 
Appellant :- Monu Masih
 
Respondent :- Union of India
 
Counsel for Appellant :- Bhola Singh Patel,Pravin Kumar Verma
 
Counsel for Respondent :- I B Singh
 

 
Hon'ble Virendra Kumar Srivastava,J.

1. Both the aforesaid Criminal appeals have been preferred under Section 374 (2) of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Code') against the judgment and order dated 15.05.2013, passed by Additional Sessions Judge, Court No.8, Lucknow in Criminal Case No.355 of 2011, under Section 8 (C) read with Section 20 (B) (II) (c) of Narcotics Drugs & Psychotropic Substance Act (in short 'NDPS Act'), 1985 whereby appellant Devendra Singh Chaudhary in Criminal Appeal No1033 of 2013 and appellant Monu Masih of Criminal Appeal No.1016 of 2013 have been convicted and sentenced for 14 years rigorous imprisonment along with fine of Rs.2 lacs each with further direction that in default of payment of fine, they had to undergo two years additional imprisonment.

2. Since both criminal appeals have been filed against common judgment, both have been heard and are being decided together by a common judgment.

3. The brief facts, of this case, is that on the secret information received, that two persons, in white colour Maruti Esteem bearing No. DL 6C 6502, were coming from Nepal via Barabanki-Lucknow and going towards Agra and were carrying huge quantity of charas in cabin/space specially created in the said car, on 15.07.2011, Shri Vipin Kumar Upadhyay, Deputy Director (Directorate of Revenue Intelligence), Zonal Unit Lucknow constituted a team headed by Shri Himanshu Shekhar, Senior Intelligence Officer, C.P. Pandey (P.W.3) with Arvind Kumar Srivastava (P.W.1) Anil Kumar Pandey (P.W.2) and Hawaldar Gorelal. They reached at Safedabad Railway Crossing at 8:15 p.m. and began to wait for the said person. On 16.07.2011, at about 01:30 a.m., they saw one white colour Maruti Esteem No. DL 6C 6502, coming from the side of Barabanki, when they gave signal to stop the car, the car driver instead of stopping the car, accelerated the same towards Lucknow. The raiding party chased the said car, intercepted and surrounded it at about 1:45 a.m. nearby matiyari crossing. Upon inspection, they found two persons sitting in the car who told their name as Devendra Chaudhary and Monu Masih (appellants). Upon query, they told that contraband charas had been concealed in a chamber, created specially in the said car. With their consent, the car was searched and total 124 packets of contraband substance, concealed in different places and secret chamber, specially created in the said Car. Some packets were in a transparent polythene and some packets were brown in colour which appeared as charas upon inspection. A small quantity of said contraband substance were separated from all the packets and four sample were made. The recovered contraband drugs were weighed and it was found as 115 kg. The appellants were arrested and a complaint was filed. The charges for the offence were framed against the appellants for offence under Section 8 (C) read with Section 20 (B) (II) (c) of Narcotics Drugs & Psychotropic Substance Act.

4. During trial, the prosecution, in order to prove its case, examined  P.W.1 Arvind Kumar Srivastava, P.W.2 Anil Kumar Pandey, P.W.3 Chandrapati Pandey, P.W.4 Vimal Kumar Srivastava.

5. After conclusion of prosecution evidence, the statement of appellants were recorded under Section 313 of the Code. They denied the prosecution story and alleged that they were falsely implicated in this case. The learned trial Court after conclusion of trial, convicted and sentenced both the appellants as above vide impugned judgment and order dated 15.05.2013.

6. Aggrieved by the said judgment, the appellants have preferred this appeal.

7. Heard Shri Anil Kumar Sharma, learned counsel for appellants, Shri Digvijay Nath Dubey learned Senior Standing Counsel appearing for Directorate of Revenue Intelligence. 

8. Learned counsel for appellants submits that though the appellants are innocent and have been falsely implicated but he is not pressing this appeal on the merits of the case and only challenging the quantum of sentence of the appellants. Learned counsel further submits that appellants are very poor person. They are driver and cleaner of the said vehicle. Learned counsel for appellants submits that the main accused for whom the said contraband was being carried, has not been arrested or challaned by the concerned department. Learned counsel also submits that due to poverty, the appellants failed to engage skilled counsel before the trial Court and they are languishing in jail since 17.07.2011, without any fault. Learned counsel further submits that the reasoning given by the trial Court for awarding the sentence more than minimum sentence, is not based on the record because neither it was proved by the prosecution that the appellants were member of any organized gang nor any witness had stated that any evidence was found against them that the appellants were member of organized gang. Learned counsel further submits that in view of COVID 19 pandemic situation, a linent view be adopted and sentence of appellant be reduced to ten years sentence along with fine of Rs.One lac.

9. In support of his submissions, learned counsel for the appellants has placed reliance on the judgments of Hon'ble Apex Court on catena of judgments which are being discussed below :-

(i) Shahejadkhan Mahebubkhan Pathan vs. State of Gujarat (2013) 1 SCC (Cri) 558 ;

(ii) Balvinder Singh and other vs. Asstt. Commr., Custom and Central Excise AIR 2005 SC 2917 ;

(iii) Shyam Prashad vs. State of Himachal Pradesh (2019) 15 SCC 399 ;

(iv) Nirbhay Singh vs. The Union of India through D.R.I. (Cr.Appeal No.1795 of 2012 decided on 11.07.2014.

10. Learned Senior Standing Counsel, appearing for Directorate of Revenue Intelligence, submits that a huge quantity of charas i.e. 115 kg charas, concealed in the said car by the appellants, was recovered from their possession and it was carried from Nepal which shows that appellants were fully aware of the presence of the said contraband charas and they were member of organised gang. He further submits that in view of social impact of the contraband illegal transaction and huge recovery of the said contraband, the appellants are not entitled for any linent view and there is no illegality in the impugned judgment.

11. I have considered the rival submission made by learned counsel for the parties and perused the record.

12. Since the learned counsel for the appellants not made any submission regarding merit of the impugned judgment and has only submitted for reduction of quantum of sentence, the impugned judgment, so far as conviction of both the appellants is concerned, is affirmed. Now the question arises whether appellants are entitled for any linent view as well as reduction of sentence awarded against him.

13. Hon'ble Supreme Court, in Balwinder Singh (Supra) wherein 175 kg heroine and 39 kg opium of foreign origin were recovered from truck owned by the appellant and appellant was sentenced for 14 years rigorous imprisonment, has reduced the sentence of imprisonment from 14 years to 10 years.

14. In Shahejadkhan Mahebubkhan Pathan (Supra), the Hon'ble Supreme Court has reduced the sentence of the appellants from 15 years to 10 years and fine was also reduced to minimum.

15. In Shyam Prashad (Supra), the sentence of the appellant was reduced by the Hon'ble Supreme Court to ten years from fifteen years and fine and default sentence was maintained.

16. In Rafiq Qureshi vs. Narcotics Control Burearu Eastern Zonal Unit AIR 2019 SC 2268 where High Court had reduced the sentence of appellant from 18 years to 16 years, Hon'ble Supreme Court discussing the object of Section 32-B NDPS Act and relevant previous judgment, further reduced the sentence of appellant from 16 years to 12 years.

17. In Nirbhay Singh (Supra), this Court reduced the conviction of appellant for offence under NDPS Act from 14 years imprisonment and fine of Rs.2 lacs to ten years imprisonment and fine of Rs.one lac.

18. It appears from perusal of facts of aforesaid cases, Hon'ble Supreme Court while reducing the sentence of appellant has also considered the role of appellants as well as their poverty.

19. Coming to the facts of the case, both the appellants are driver and cleaner of the said vehicle wherefrom the said contraband narcotics drugs was recovered. Prosecution has not proved any criminal history of the appellants. They are poor person and are languishing in jail since 16.07.2011, i.e. from the date of their arrest in this case.

20. Looking into the fact and circumstances of the case, a linent view is required to be adopted on point of quantum of sentence awarded to them, therefore, both the appeals i.e. Criminal Appeal No.1033 of 2013 (Devendra vs. Union of India through DRI) and Criminal Appeal No.1016 of 2013 (Monu Masih vs. Union of India) deserves to be partly allowed in view of above discussion.

21. The conviction of both the appellants is hereby, affirmed. However, the sentence of both the appellants is reduced from 14 years rigorous imprisonment with fine of Rs. two lacs to 11 years rigorous imprisonment with fine of Rs.One lac each. In default in payment of fine, both the appellants have to undergo six months further imprisonment. Both the appellants are in jail. They shall be released from jail after serving out their sentence.

22. The impugned judgment and order dated 15.05.2013 is modified to the aforesaid extent. Both the appeals are partly allowed.

23. Let a copy of this judgment along with lower court record be transmitted to the trial Court concerned forthwith for necessary compliance. Compliance report be submitted within two months.

Order Date :- 5.1.2021

P.s.