Ashok Jaiswal vs The State Of U.P.
2023 Latest Caselaw 8126 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Reserved on 21.2.2023
 
Delivered on 21.03.2023
 
Court No. - 13
 
Case :- CRIMINAL APPEAL No. - 161 of 2002
 
Appellant :- Ashok Jaiswal
 
Respondent :- The State Of U.P.
 
Counsel for Appellant :- Poonam Singh,R B Yadav
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Suresh Kumar Gupta,J.

1. Heard Mr. R.B. Yadav, learned counsel for appellant, Mr. S.P. Tiwari, learned A.G.A. for the State and perused the trial court record.

2. This criminal appeal has been preferred by appellant challenging the impugned judgment and order dated 07.01.2002 passed by learned Additional Sessions Judge Court No. 7, Unnao in Special Trail Case No. 79 of 2000 arising out of Case Crime No. 796 of 2000, under Section 8/18/20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 whereby the accused appellant was convicted and sentenced for ten years rigorous imprisonment with fine of Rs.1,00,000/-. In default of payment of fine he was further to undergo one years rigorous imprisonment. The appellant was also convicted and sentenced in Sessions Trial No. 749 of 2000 arising out of Case Crime No. 795 of 2000 under Section 60 of the Excise Act for two years rigorous imprisonment with fine of Rs.20,000/-. In default of payment of fine he was further to undergo six months rigorous imprisonment.

3. Since both the Sessions Trial i.e. Sessions Trial No. 749 of 2000 and Sessions Trial 79 of 2000 were decided by a common judgment, hence common criminal appeal has been filed by the appellant.

4. Brief facts of the present case are that on 18.6.2000 S.H.O. Suresh Babu along with his companion Constable Balwan Singh, Constable Shyam Babu was on patrolling duty by Government Jeep No. UP 92-A-4448 with Driver Constable Harpal Singh. When they reached at tri- junction of Lucknow at that time an information was received from the informer that some miscreants coming towards Lucknow by Maruti Van No. UP 75-A-7729 containing large quantity of country-made liquor in a plastic bag. If hurried the accused persons can be caught alongwith vehicle and contraband. It was late of night and there was no possibility of availability of public witness. After searching each other on the basis of information of informer, the police party started checking of light vehicle. At that time, one Maruti Van came towards Lucknow in a high speed, the police team tried to stop the car vehicle by pointing the flashlight but the Van did not stop and the driver of the vehicle increased the speed of the vehicle. So after chasing, Maruti Van was intercepted by the police party in the city of Unnao near railway crossing but immediately driver of the vehicle and other persons fled away towards railway line after seeing the police, the police party chased to miscrants then one person was arrested and his name and address was asked then he told his name Ashok Jaiswal son of Babu Lal R/o Civil Lines House NO. 36, Kotwali District Unnao. and asked the name of absconded persons then the arrested accused told that name of the driver is Gudda and third person was Bablu. The arrested person told to police party that 11 bags of containing 2143 pouch of country-made liquor belong to him. At that time it was informed to him that he has right to search in presence of gazetted officer, the then appellant told that you can make search. Thereafter on his consent, personal search was conducted by the arresting officer and from his possession one kilogram Charas rapped in a newspaper was recovered. On the spot, 100 gm charas was taken as sample and from each bags of country made liquor three pouch for sample was also taken. On the spot sample of country-made liquor, and country-made liquor was also sealed in a separate clothes. The recovered charas and sample charas of 100 gm were also rapped in a separate clothes. After apprising ground of arrest, the appellant was taken into custody. The said Maruti Van No. UP75-A-7729 was also seized. On the spot, recovery memo was prepared in the light of torch by Constable Balwan, on the dictation of S.H.O. Thereafter the police personnel put their signature in recovery memo. The accused was arrested at 1:30 a.m. on 19.6.2000. One copy of the recovery memo was also given to appellant, which was torn by him on the spot. On the basis of recovery memo, FIR of this case was registered against the appellant under Section 8/18/20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 and 60 of the Excise Act.

5. On the basis of the recovery memo, Case Crime No. 796 of 2000 was registered under Section 8/18/20 of the Narcotic Drugs & Psychotropic Substances Act, and Case Crime No. 795 of 2000 under Section 60 of the Excise Act.

6. The investigation of this case was entrusted to PW-5 S.I. Hari Om Giri. During investigation, he collected relevant papers and recorded statements of S.H.O. Suresh Babu. On the pointed out of S.H.O. Suresh Babu he inspected the place of occurrence and prepared site plan. After completing necessary formalities and after collecting report of Forensic Science Laboratory, charge sheet was filed on 14.8.2000 under Section 8/18/20 of the Narcotic Drugs & Psychotropic Substances Act and Section 60 of the Excise Act before the court of sessions. The Sessions Court directly took cognizance and framed charges against the appellant on 16.10.2000 under Section 8/18/20 of the Narcotic Drugs & Psychotropic Substances Act. The charge was also framed under Section 60 of the Excise Act by learned Additional Sessions Judge-III, Unnao on 24.7.2000. The charges were read-over to appellant in Hindi but he denied the charges and claimed to tried.

7. In order to prove its case, the prosecution examined PW-1 Head Constable Jagdish Narain Sankhvar, who registered the case under Section 8/18/20 of the Narcotic Drugs & Psychotropic Substances Act and Section 60 of the Excise Act, and proved chick FIR as Ex. ka-1, G.D. Ex. Ka-2.

8. PW-2 Constable Shyam Babu is the witness of recovery memo and member of police party. He proved recovery memo as Ex. Ka-3. He also proved charas as well as its sample as Ex-1 and 2.

9. PW-3 S.H.O. Suresh Babu is the star witness of recovery of alleged charas and country-made liquor. He proved entire recovery .

10. PW-4 Shyma Sunder Mishra proved the docket form and sample of 100 gm charas. He is a formal witness.

11. PW-5 S.I. Hari Om Giri is the Investigating Officer of this case, who proved the site plan as Ex. Ka-5 and 6. He also proved the report of Forensic Science Laboratory. The report of charas and country-made liquor was proved as Ex. Ka7 and Ex. Ka-8. Since in one recovery memo country-made liquor and in another recovery memo the charas was recovered. In both the cases, a joint trial was proceeded against the appellant.

12. After recording the testimony of the witnesses, the statement of accused was recorded under Section 313 Cr.P.C. In the statement recorded under Section 313 Cr.P.C., the appellant denied the allegations levelled against him and pleaded not guilty. He has submitted that he has been falsely implicated in this case. In his defence no evidence was produced. After hearing the arguments of learned counsel for appellant as well as learned ADGC, learned trial court passed the conviction order of the appellant as aforesaid.

13. Learned counsel for appellant has submitted that the trial court has wrongly convicted the appellant without appreciating the evidence available on record. It is further submitted that the entire investigation is tainted and without collecting the cogent and credible evidence filed charge sheet against the appellant and all the witnesses are police personnel and falsely deposed against him just to show good work. The trial court has passed the judgment and order on the basis of only presumption and assumptions. There are several contradictions in the statement of witnesses.

14. It is further submitted that there is no compliance of Section 50 of the Narcotic Drugs & Psychotropic Substances Act and no consent memo was prepared by the S.H.O. Suresh Babu. It is further submitted that no independent witness, who could support the prosecution case, has been examined. Further no effort was made by the arresting officer to search the public witness. The investigation of this case was conducted by S.I. Hari Om Giri, who was subordiante to the arresting officer and he was not an independent witness. Thus the whole investigation is highly tainted. There is major contradictions in the statement of witnesses of recovery memo. Even in the search memo, signature of the appellant was not obtained. It is a very serious lapse on the part of the arresting officer.

15. It is also submitted that in what basis the weight of alleged charas was one kg and without weighing it cannot be presumed that the recovered charas was one kg. Thus the weight of the charas as mentioned in the recovery memo only on the basis of imagination and estimation without weighing the same.

16. Lastly learned counsel for appellant has submitted that the punishment, which was awarded to the appellant is too much harsh and against the statutory provision of law. It is also pointed out that this matter pertains to the year 2000 and almost 23 years have passed. At the time of incident, the appellant was 47 years old. Now presently the appellant is 70 years old and is suffering from several old age disease. It is further submitted that if the prosecution case is accepted in toto then the recovered article is less than commercial quantity. The recovered charas comes below the commercial quantity and learned trial court convicted the appellant with maximum sentence as awarded under Section 20 of the Narcotic Drugs & Psychotropic Substances Act.

17. S.P. Tiwari, learned A.G.A. for the State has submitted that only on the basis of technicalities, it cannot be said that alleged contraband has not been recovered from the possession of the appellant and due to wee hours in the night, nobody came forward to depose himself. The prosecution has fully established his case beyond reasonable doubt. The trial court has rightly convicted and sentenced the appellant.

18. The provisions of Section 20(b) in The Narcotic Drugs and Psychotropic Substances Act reads as under :-

"(b) where the contravention 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".

19. On the bare reading of the provision of Section 20 (b) of the Narcotic Drugs and Psychotropic Substances Act it is crystal clear that no minimum sentence is prescribed in the N.D.P.S. Act but the learned trial court convicted the appellant for 10 years rigorous imprisonment and fine of Rs. one lakh rupees, which is too much harsh. Thus, the trial court without exercising the judicial mind and discretion convicted the appellant on higher side. The appellant is old age persons and suffering from several ailments. He is very poor person, therefore, he seeks leniency for awarding the sentence to him by the learned trial court.

20. Section 60 of the Excise Act reads as under:-

60. Penalty for unlawful, export, transport, manufacture, possession, sale, etc.- (1) Whoever, in contravention of this Act or of any rule or order made thereunder, or of any licence, permit or pass obtained thereunder:-

(a) exports, any intoxicant; or

(b) transports or possesses any intoxicant which is not covered under section 63 of this Act; or

(c) collects or sells leaves and small stalks (not accompanied by flowering or fruiting tops) of natural and spontaneous growth of wild Indian Hemp Plant (cannabis sativa) other than charas, ganja or any other intoxicating drug covered under the Narcotic Drugs and Psychotropic Substances Act, 1985; or

(d) constructs or works any distillery, brewery , manufactory or vintnery; or

(e) uses, keeps or has in his-possession any material, still, unensil, implement or apparatus, whatsoever, for the purpose of manufacturing any intoxicant other than tari; or

(f) removes any intoxicant from any distillery, brewery, manufactory, vintnery or warehouse licensed, established or continued under this Act ; or

(g) bottles any liquor for the purposes of sale; or

(h) sells any intoxicant, save in the case provided for by Section 61; or

(i) taps, or draws tari from any tari-producing tree in the areas notified under Section 42; shall be punished with imprisonment which may extend to two years and with fine which may extend to one thousand rupees in the case of an offence under sub clause (i) and in any other case with imprisonment which may extend to three years and with fine which shall not be less than ten times the amount of consideration fee or duty which would have been leviable if such intoxicant had been dealt with in accordance with this Act and the rules and orders made thereunder or in accordance with any licence, permit or pass obtained thereunder, or two thousand rupees whichever is greater.

(2) Whoever in contravention of this Act or any rule or order made thereunder or of any licence, permit or pass, obtained under this Act, manufactures any intoxicant shall be punished with imprisonment which shall not be less than six months and which may extend to three years and also with fine which shall not be less than five thousand rupees and which may extend to ten thousand rupees.

(3) Whoever, in contravention of this Act, or any rule or order made thereunder, consumes any intoxicant, shall be punished with fine which shall not be less than one thousand rupees and which may extend to two thousand rupees.

60-A . Penalty for mixing noxious substance with intoxicant and selling of noxious substance under the garb of intoxicant-Whoever adulterates or causes to be adulterated any intoxicant by mixing any other substance or foreign ingredient to make such intoxicant noxious or sells, offers or makes or causes to be sold or offered or made available such noxious intoxicant or any other noxious substance for consumption in the garb of an intoxicant, likely to cause disability or hurt or grievous hurt or death or any other consequential injury to human beings shall be punished;

(a) if as a result of such an act, death is caused, with death or imprisonment for life and shall also be liable to fine which may extend to ten lakh rupees but shall not be less than five lakh rupees;

(b) if as a result of such an act, disability or grievous hurt is caused, with imprisonment for life or with rigorous imprisonment which may extend to ten years but shall not be less than six years and with fine which may extend to five lakh rupees but shall not be less than three lakh rupees;

(c) if as a result of such an act, any hurt or any other consequential injury is caused to any person, with imprisonment for a term which may extend to two years but shall not be less than one year and fine which may extend to two lakh fifty thousand rupees but shall not be less than one lakh twenty five thousand rupees;

Explanation- For the purpose of this section the expression "hurt and grievous hurt" shall have the same meaning as in section 319 and section 320 respectively of the Indian Penal Code, 1860 (Act no. XLV of 1860).

21. In view of the above, in the aforesaid section minimum sentence is provided three months imprisonment and maximum fine of Rs. 10,000/- and no maximum period of sentence is provided but the trial court has imposed fine of Rs.20,000/- under Section 60 of the U.P. Excise Act upon the appellant and under Section 8/18/20 of the Narcotic Drugs & Psychotropic Substances Act, ten years rigorous imprisonment and fine of Rs.1,00,000/- has been imposed. The appellant was remained in jail about 11 months. The sentence awarded by the learned trial court is too much harsh under Section 22 (b) of the Narcotic Drugs & Psychotropic Substances Act and no minimum sentence is provided and sentence upto ten years imprisonment. Therefore, I am of the considered opinion that the total fine of Rs. 1,20,000/- imposed upon the appellant is too much excessive, therefore, fine of Rs. 20,000/- shall be imposed under Section 8/18/20 of the Narcotic Drugs & Psychotropic Substances Act, and fine of Rs. 5,000/- shall be imposed under Section 60 of the U.P. Excise Act.

22. The conviction of the appellant is confirmed, therefore, on the point of conviction, the appeal is dismissed. On quantum of sentence this Court thinks that end of justice would be met if the appellant is sentenced to the period already undergone by him under the aforesaid offences. Further as per provision of Section 22 (b) of the N.D.P.S. Act maximum fine of Rs. 1,00,000/- may be imposed, therefore, in my considered opinion fine of Rs. 1,00,000/- under Section 8/18/20 of the N.D.P.S. Act and Rs.20,000/- under Section 60 of the U.P. Excise Act, imposed upon the appellant by the trial court is too much excessive. Therefore, in the interest of justice fine of Rs. 1,00,000/- imposed under Section/18/20 of the N.D.P.S. Act and fine of Rs.20,000/- imposed under Section 60 of the U.P. Excise Act is reduced to Rs.20,000/- and Rs.5,000/- respectively. Therefore, on the point of sentence the appeal is partly allowed. It is hereby directed the appellant to deposit Rs.25,000/- within one month. If he fails to pay the alleged amount then he shall undergo simple imprisonment of three months. If the amount of Rs.25,000/- has already been deposited by the appellant, then there is no need to deposit the fine.

23. Thus the appeal dismissed on the point of conviction and partly allowed on the point of sentence. The sentence is reduced to the period already undergone by the appellant and total fine of Rs. 1,20,000/- is reduced to Rs.25,000/-.

24. Office is directed to communicate this order to the trial court concerned for necessary compliance. The trial court record, if any, be sent back.

Order Date: 21.3.2023

Virendra