Allahabad High Court
Smt. Parwati Vika vs State Of U.P on 6 July, 2022
Bench: Ajai Kumar Srivastava-I
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 15
Case :- JAIL APPEAL No. - 1705 of 2012
Appellant :- Smt. Parwati Vika
Respondent :- State Of U.P
Counsel for Appellant :- Jail Appeal In Person,Dheeraj Srivastava,Piyush Kumar Singh,Shivendra Pratp Singh
with
Case :- CRIMINAL APPEAL No. - 1709 of 2012
Appellant :- Parwati Vika
Respondent :- State Of U.P
Counsel for Appellant :- Shivendra Pratap Singh,Suresh Kumar Gupta
Counsel for Respondent :- Govt. Advocate
Hon'ble Ajai Kumar Srivastava-I,J.
The instant appeal has been preferred against the Judgment and order dated 25.10.2012 passed by the Additional Sessions Judge, Court No.2, Lakhimpur Kheri in Criminal Case No.112 of 2011 (State of U.P. Vs. Parwati Vika) convicting the appellant under Section 8/20 N.D.P.S. Act, 1985 sentencing her for 10 years rigorous imprisonment and fine of Rs.1,00,000/- and in default of payment of fine two years additional rigorous imprisonment.
Heard Sri Shivam Tiwari holding brief of Sri Piyush Kumar, learned Counsel for the appellant and learned A.G.A. for the State.
Learned counsel for the appellant, at the very outset, submits that he does not want to press the instant appeal on merits and simply prays that custodial punishment awarded to the appellant under Section 8/20 of the N.D.P.S. Act may be reduced to the minimum sentence prescribed under the law, as appellant is in custody for about eleven years. Learned counsel for the appellant has further prayed for the reduction of period of imprisonment, which appellant has to undergo in default of payment fine i.e. two years additional simple imprisonment under Section 8/20 of N.D.P.S. Act. Learned counsel has prayed that the aforesaid period of default imprisonment may be reduced. He points out that the incident had taken place in the year of 2011.
Section 20 of the N.D.P.S. reads as under:-
20. Punishment for contravention in relation to cannabis plant and cannabis. Whoever, in contravention of any provisions of this Act or any rule or order made or condition of license 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 1[(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 six months, 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.
Hon'ble Apex Court in the case of Raj Bala Vs. State of Haryana and others (2016) 1 SCC 463, the Hon'ble Supreme Court has held that:-
"A Court, while imposing sentence, has a duty to respond to the collective cry of the society. The legislature in its wisdom has conferred discretion on the Court but the duty of the court in such a situation becomes more difficult and complex. It has to exercise the discretion on reasonable and rational parameters. The discretion cannot be allowed to yield to fancy or notion. A Judge has to keep in mind the paramount concept of rule of law and the conscience of the collective and balance it with the principle of proportionality but when the discretion is exercised in a capricious manner, it tantamounts to relinquishment of duty and reckless abandonment of responsibility. One cannot remain a total alien to the demand of the socio-cultural milieu regard being had to the command of law and also brush aside the agony of the victim or the survivors of the victim. Society waits with patience to see that justice is done. There is a hope on the part of the society and when the criminal culpability is established and the discretion is irrationally exercised by the court, the said hope is shattered and the patience is wrecked. It is the duty of the court not to exercise the discretion in such a manner as a consequence of which the expectation inherent in patience, which is the "finest part of fortitude" is destroyed. A Judge should never feel that the individuals who constitute the society as a whole is imperceptible to the exercise of discretion. He should always bear in mind that erroneous and fallacious exercise of discretion is perceived by a visible collective."
After giving my anxious consideration to the arguments advanced on behalf of the accused appellant and learned A.G.A, I am convinced that this is a matter in which it would be appropriate to reduce the term of sentence awarded to the accused-appellant in default of payment of fine keeping in view the judgment of Hon'ble Apex Court rendered in (2008) 1 SCC (Cri) 1, Shanti Lal Vs. State of M.P.
Hence, the appeal is liable to be partly allowed.
Conviction of accused-appellant, namely, Smt. Parwati Vika under Section 8/20 of N.D.P.S. Act is maintained. However, sentence in respect of period of imprisonment in default of payment of fine is only modified. The conviction of appellant- Smt. Parwati Vika under Section 8/20 N.D.P.S. Act and sentence of 10 years R.I. and fine of Rs.1,00,000/- awarded to her therefor is affirmed. However, the appellant in default of payment of fine will undergo additional six months' simple imprisonment. The period of sentence already served out by her in jail will be adjusted to the period of sentence awarded to her under this order.
Consequently, the appeal is partly allowed.
Let the judgment along with lower court record be transmitted to lower court for compliance.
Order Date :- 6.7.2022
Saurabh
