Jamshed vs State Of U.P.
2023 Latest Caselaw 9065 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Reserved on 24.2.2023
 
Delivered on 28.3.2023
 
Court No. 13
 
Case :- CRIMINAL APPEAL No. - 1011 of 2018
 

 
Appellant :- Jamshed
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Pratima Srivastava,Amrendra Singh,Armendra Pratap Singh,Pankaj Bala,Ram Kumar Yadav,Satendra Nath Rai,Shatrughan Sah
 
Counsel for Respondent :- Govt  Advocate
 
with
 
Case :- CRIMINAL APPEAL No. - 1701 of 2018
 

 
Appellant :- Mohd. Yameen
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Avanindra Singh Parihar,Avanish Kumar Singh,Maitreyee Singh,Monika Dwivedi
 
Counsel for Respondent :- Govt. Advocate
 
Hon'ble Suresh Kumar Gupta,J. 

1. As the appellants of both the appeals have been convicted by the common impugned judgment, therefore, both the appeals are decided a common judgment.

2. Heard learned counsel for the appellant in both the appeals, Mr. S.P.Tiwari, learned A.G.A. for the State as well as perused the record.

3. The present appeals have been preferred against the judgment and order dated 18.04.2018 passed by the Additional Sessions Judge, Court No. 3, Lakhimpur Kheri in Criminal Case No. 3 of 2016 arising out of crime no. 328 of 2015, Police Station- Palia, District- Kheri in which the appellants were convicted and sentenced under Section 20 (b) (ii) (c) of the The Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the N.D.P.S. Act) for 20 years' rigorous imprisonment and fine of Rs. 1,50,000/- each. In default of payment of fine, the appellants shall undergo three months additional simple imprisonment.

4. The brief facts of the present case emerges as such that on 16.10.2015 at 16:50 on the information of the informer and on the instruction of the Additions Superintendent of Police, Sub-Inspector- Vinay Kumar Diwakar along with patrolling party rushed to the spot and arrested the appellants, Jamshed and Mohd. Yameen along with vehicle no. TATA 207 bearing Vehicle No. U.A. 07 T 1339. On query made by the police party, the appellants told that inside bonnet of the aforesaid vehicle contraband charas was kept then C.O. Palia- Ram Ashrey was called. Thereafter, in the presence of C.O. Palia- Ram Ashrey, search was conducted then two white sacks containing Charas were recovered. After opening the two sacks, from one sack in a polythene bundle of 20 packets charas were recovered and from another sack in a black polythene bundle of 17 packets charas were recovered. Weight of the recovered articles was measured on spot then total weight of recovered charas was found as 39 kgs and 342 gms. The accused/appellant- Mohd. Jamshed told that 20 packets is belonging to him and and the appellant Mohd. Yameen told that 17 packets is belonging to him. The recovered contraband charas was sealed on the spot and sample was sealed in a separate cloths. On the spot, recovery memo was prepared and one copy of the recovery memo was given to both appellants. F.I.R. was lodged against appellants, Jamshed and Mohd. Yameen as crime no. 328 of 2015 under Section 8/20 of the N.D.P.S. Act.

5. The case was investigated by the Investigating Officer. He further submitted that the Investigating Officer interrogated the appellants and recorded the statements of the appellants. The statement of the witnesses was also recorded under Section 161 Cr.P.C. The sample of the recovered charas was sent for chemical examination. On the pointing out of the complainant, the site plan was prepared and after getting the chemical report charge sheet was submitted before the Sessions Judge.

6. As per chemical examination report dated 4.12.2015 recovered substance was found charas, therefore, the charges were framed against the appellants under Section 20 (b) (ii) (c) of the N.D.P.S. Act. The charges were read over to the appellants. The appellants denied the charges levelled against them and claimed to be tried.

7. During the course of the investigation following witnesses were examined by the prosecution, which are read as under:-

(i) P.W.-1- Vinay Kumar Diwakar, who is Arresting Officer, who proved the arresting memo as Exbt- Ka-1, recovery memo as Exbt- Ka-2. The first bundle of recovered charas, which was recovered from the first sack were opened before the court and proved by the witnesses as material Exbt-1 to Exbt.-23 and the second bundle of recovered charas i.e. 17 packets charas of black polythene, which was recovered from the second sack were proved by the witnesses as material Exbt-24 to Exbt.-40. The polythene were examined as material Exbt.-41, the sack was proved as material Exbt.-42, the cloth was proved as material Exbt.-43, the reliance mobile recovered from the possession of Mohd. Yameen as Exbt.-44, rapped cloth was proved as material Exbt.-45. The other zen mobile and amount of Rs. 1010 recovered from the possession of the appellant- Jamshed as material Exbt- 46. The cloth was proved as material Exbt.-47.

(ii) P.W.-2-Head Constable- Pankaj Kumar Singh, who corroborated the evidence of P.W.-1.

(iii) P.W.-3-Nitish Bharadwaj, who was member of police party, has also corroborated the recovery of the contraband substance. Thus, evidence of P.W.-3 is in corroboration of P.W.-1 and P.W.-2

(iv) P.W.-4-Constable Dilip Shukla, who was member of police party.

(v) P.W.-5- S.I.- Yogendra Prasad was examined, who was the Investigating Officer of this case, proved the Chik F.I.R. as Exbt. Ka-3, G.D. as Exbt-Ka-4, site plan as Exbt-Ka-5 and charge sheet as Exbt-Ka-6 and chemical examination report as as Exbt-Ka-7.

Thus, the prosecution in order to prove his case produced P.W.1 to P.W.8 as oral evidence and relied upon Ext. Ka.1 to Ext.Ka-7 and material Ext.1 to Ext. 47 as a documentary evidence.

8. After recording the testimony of the witnesses, the statements of the accused/appellants was recorded under Section 313 Cr.P.C. by the trial court explaining the entire evidence and other incriminating circumstances against the appellants. In the statement recorded under Section 313 Cr.P.C. , the appellants stated that all the allegations levelled and attributed to them is totally false. The accused/appellant Jamshed submitted that at the time of recovery he has no knowledge that the recovered sacks were containing charas. It is also submitted that the recovered contraband substance is not belonging to him and the alleged sacks/contraband substances were belonging to the accused- Naim, R/o- Inayat Khan ki Sidi, Hathi Khana Chauraha, Police Station- Kotwali, District- Rampur. Despite his statement no attempt was made by the police party to arrest accused- Naim. The statement of the Mohd. Jamshed was also in corroboration with co-accused- Mohd. Yameen. They further submitted that the entire prosecution story is false and fabricated in toto and also stated that they have been falsely implicated by the police to show good work.

9. After hearing learned counsel for both the parties and appreciating the oral and documentary evidence available on record, the learned trial court convicted the accused/appellants as aforesaid. Being aggrieved with the order dated 18.4.2018, the appeals has been filed by the appellants.

10. Learned counsel for the appellants submitted that the appellants have been falsely implicated in the present case. He further submitted that during the arrest of the appellants, procedure of Section 100 (4) Cr.P.C. has not been followed by the Arresting Officer, as he failed to produce any independent witness and all the witnesses are police personnel, whose statements are not reliable. He further submitted that police has also failed to follow the procedure as mentioned in Section 40, 42 and 50 of the N.D.P.S. Act

11. Lastly, Learned counsel for the appellants submitted that the appellants are poor person and employee of the owner Naim, who has handed over the alleged contraband substance to the appellant for delivery and, thus, the appellants have no knowledge about the contraband substance, which were contained in the sacks. This fact has not been considered by the learned trial court and only on the basis of the statement of the police personnel, the trial court wrongly convicted the appellants. He also submitted that due to poor condition, the appellants were not able to engage counsel of their choices. Learned counsel for the appellants submitted that the appellants were convicted under Section 20 (b) (ii) (c) of the N.D.P.S. Act, 1985 for 20 years' rigorous imprisonment and fine of Rs. 1,50,000/- and thus, maximum sentence has been awarded to the appellant, which is too harsh. He further submitted that period of more than 7 years and 5 months have been spent by the appellants in jail. He further submitted that the appellants are in jail since 16.10.2015 the total period of incarceration of the appellant is about 7 years 5 months, therefore, learned counsel for the appellant claims leniency. Learned counsel for the appellants stated that he does not want to argue the appeal on merit and he only wants to advanced his submissions on the quantum of sentence

12. Learned A.G.A. vehemently opposed and submitted before the Court that the prosecution is fully able to prove the charges against the appellant. Therefore, learned trial court after appreciating the evidence available on record rightly convicted the appellant.

13. Not pressing the criminal appeal after the conviction of the accused/appellant by the court below is like the confession of the offence by the accused. The Courts generally take lenient view in the matter of awarding sentence to an accused in criminal trial, where he voluntarily confesses his guilt, unless the facts of the case warrants severe sentence.

14. In Mohd. Giasuddin Vs. State of AP, AIR 1977 SC 1926, explaining rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court:-

"Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social behaviour has to be countered not by undue cruelty but by re-culturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries."

15. In Sham Sunder vs Puran, (1990) 4 SCC 731, where the high court reduced the sentence for the offence under section 304 part I into undergone, the supreme court opined that the sentence needs to be enhanced being inadequate. It was held:

"The court in fixing the punishment for any particular crime should take into consideration the nature of offence, the circumstances in which it was committed, the degree of deliberation shown by the offender. The measure of punishment should be proportionate to the gravity of offence."

16. In State of MP vs Najab Khan, (2013) 9 SCC 509, the high court, while upholding conviction, reduced the sentence of 3 years by already undergone which was only 15 days. The supreme court restored the sentence awarded by the trial court. Referring the judgments in Jameel vs State of UP (2010) 12 SCC 532, Guru Basavraj vs State of Karnatak, (2012) 8 SCC 734, the court observed as follows:-

"In operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. 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. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice dispensation system to undermine the public confidence in the efficacy of law. It is the duty of court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed. The courts must not only keep in view the rights of victim of the crime but also the society at large while considering the imposition of appropriate punishment."

17. Earlier, "Proper Sentence" was explained in Deo Narain Mandal Vs. State of UP (2004) 7 SCC 257 by observing that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the principle of proportionately. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically.

18. In subsequent decisions, the supreme court has laid emphasis on proportional sentencing by affirming the doctrine of proportionality. In Shyam Narain vs State (NCT of delhi), (2013) 7 SCC 77, it was pointed out that sentencing for any offence has a social goal. Sentence is to be imposed with 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 the life of the victim but also a concavity in the social fabric. The purpose of just punishment is that the society may not suffer again by such crime. The principle of proportionality between the crime committed and the penalty imposed are to be kept in mind. The impact on the society as a whole has to be seen. Similar view has been expressed in Sumer Singh vs Surajbhan Singh, (2014) 7 SCC 323 , State of Punjab vs Bawa Singh, (2015) 3 SCC 441, and Raj Bala vs State of Haryana, (2016) 1 SCC 463.

19. In Kokaiyabai Yadav vs State of Chhattisgarh(2017) 13 SCC 449, it has been observed that reforming criminals who understand their wrongdoing, are able to comprehend their acts,have grown and nartured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanising the world.

20. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166, the Supreme Court referred the judgments in Jameel vs State of UP (2010) 12 SCC 532, Guru Basavraj vs State of Karnatak, (2012) 8 SCC 734, Sumer Singh vs Surajbhan Singh, (2014) 7 SCC 323 , State of Punjab vs Bawa Singh, (2015) 3 SCC 441, and Raj Bala vs State of Haryana, (2016) 1 SCC 463 and has reiterated that, in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The supreme court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced.

21. The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society could not long endure and develop under serious threats of crime and disharmony. It is therefore, necessary to avoid undue leniency in imposition of sentence. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system.

22. The provisions of Section 20(b)(ii)(C) in The Narcotic Drugs and Psychotropic Substances Act, 1985 is read as under:-

"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."

23. On the bare reading of provision of Section 20(b)(ii)(C) in The Narcotic Drugs and Psychotropic Substances Act, 1985, it is clearly that the maximum punishment has been provided for 20 years imprisonment or fine or 2 Lakh.

24. Considering the entire facts and circumstances of the case, the poor condition of the appellants and the fact that the appellant has already served the sentence about 7 years and 5 months, I am of the view that in the interest of justice the maximum sentence of 20 years, which has been awarded by the trial court under Section 20(b)(ii)(C) of the N.D.P. S. Act to the appellants- Jamshed and Mohd. Yameen is too harsh, consequently in the interest of justice sentence of 20 years is reduced to 10 years with all remissions. Considering the poor condition of the appellants, fine of Rs. 1,50,000/- awarded under Section 20(b)(ii)(C) of the N.D.P. S. Act is reduced from Rs. 1,50,000/- to 1,00,000/- Thus, total fine of Rs.1,00,000 /- shall be paid by the each appellants within one month after their release. If amount of fine i.e. Rs.1,00,000 /- is not paid by the appellants within one month after their release, then they shall undergo three months simple imprisonment.

25. Jail authority shall calculate the sentence period along with remission. The period already spent in jail shall be set off from the sentence awarded by the trial court. The appellants shall be released after serve out the 10 years imprisonment.

26. Thus, the appeals are dismissed on point of conviction and partly allowed on the point of sentence only.

27. Office is hereby directed to communicate the judgement and order of this Court to the trial court as well as jail concerned for necessary compliance. The trial court record be also transmitted to the learned trial court.

Order Date :- 28.3.2023

Anuj Singh