Delhi High Court
Vijay Pal vs State on 25 February, 2009
Author: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
39.
+ CRL.A. 540/2007
Date of Decision:25.02.2009
VIJAY PAL ..... Appellant
Through Mr. Sunil K. Mittal, Mr. Shyam
Sharma, Mr. Kuldeep Singh, Mr.
Kshitij Mittal, adv.
versus
STATE ..... Respondent
Through Mr. Navin Sharma, APP
CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed
to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
: MOOL CHAND GARG,J(ORAL)
1. By this appeal the appellant assails the judgment passed by the
learned Special Judge, NDPS, New Delhi in Sessions Case No.
70A/2004 wherein the petitioner was sent for trial after registration of
FIR No.80/2003 at P.S. Narcotics Branch for having committed a crime
under Section 18(c) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as „the said Act‟)
because he was found with six kilogram of opium. After the challan
was filed charge was framed against the appellant under Section
18(c) of the said Act which is also reflected from the order framing
charge in the trial Court record.
2. After the evidence was recorded, the learned trial Court
convicted the appellant under Section 18(b) of the said Act as is
apparent from the reading of para 29 of the Judgment which reads as
under:
"29. I, therefore, am of the opinion that the
prosecution has succeeded in proving its case
beyond reasonable doubt against the accused Vijay
Pal that he was found in possession of 6 Kg. of
Opium. In view thereof, I convict accused Vijay Pal
for committing an offence punishable U/s 18(b) of
NDPS Act."
3. As per the order passed on sentence dated 13.07.2007, the
appellant has been sentenced to undergo RI for a period of 10 years
and was imposed a fine of Rupees One lac under Section 18(b) of the
said Act and in default to undergo S.I. for six months. According to
the appellant his conviction by the trial Court for an offence under
Section 18(b) of the said Act instead of Section 18(c) is contrary to
the provisions contained under Section 222 of Cr.P.C. which provides
as under:
222- When offence proved included in offence
charged:- (1) When a person is charged with an
offence consisting of several particulars, a combination
of some only of which constitutes a complete minor
offence, and such combination is proved, but the
remaining particulars are not proved, he may be
convicted of the minor offence, though he was not
charged with it.
(2) When a person is charged with an offence and facts
are proved which reduce it to a minor offence, he may
he convicted of the minor offence, although he is not
charged with it.
(3) When a person is charged with an offence, he may
be convicted of an attempt to commit such offence
although the attempt is not separately charged.
(4) Nothing in this section shall be deemed to authorise
a conviction of any minor offence where the conditions
requisite for the initiation of proceedings in respect of
that minor offence have not been satisfied.
4. It is submitted that the punishment provided in the said Act for
the commission of an offence under Section 18(c) is R.I. for a term
which may extend to 10 years and a fine which may extend to
Rupees One lac whereas with respect to the offence under Section
18(b) the punishment which can be imposed is of a minimum
sentence of 10 years R.I. which may also extend to 20 years and a
minimum fine of Rupees One lac is also to be imposed which can also
be extended to Rupees two lacs.
5. It is, therefore, submitted by the learned counsel for the
appellant that the order convicting the appellant and sentencing him
under Section 18(b) of the said Act is illegal and contrary to the
provisions. He also submits that he has already undergone more than
six years of imprisonment and, therefore, there is no justification to
keep him in jail.
6. Learned counsel says that he will be satisfied if the conviction
of the appellant is modified to conviction under Section 18(c) of the
Narcotic Drugs and Psychotropic Substances Act, 1985 and he is
granted certain relief by this Court on the question of sentence by
reducing period of sentence awarded to him to the period already
undergone.
7. Learned APP submits that petitioner may be right but the
appellant is guilty of a very serious charge and he has been found to
be in possession of six kilograms of opium and, therefore, even
though the Special Judge charged him under Section 18(c) of the said
Act but he has been rightly convicted.
8. However, having gone through the record and the order
framing the charge, it is apparent that the appellant was to face a
charge under Section 18(c) of the said Act which also reflects from
the judgment delivered by the trial Court but without any explanation
and without giving any reason or even an opportunity to the appellant
to face the charge under Section 18(b) of the said Act. The trial Court
has convicted the appellant under Section 18(b) of the said Act which
is illegal and contrary to Section 222 of Cr.P.C. which applies as far as
the procedure is concerned.
9. In these circumstances, the order of conviction and sentence
awarded to the appellant are modified to the extent that the
appellant is convicted under Section 18(c) of the said Act and the
sentence awarded to him is reduced to the period already undergone.
In case the appellant is not wanted in any other case he may be
released forthwith.
10. With these directions, the appeal is disposed of.
11. A copy of the order be sent to the Jail Superintendent for
information and compliance by the Registrar General of this Court on
Fax.
12. Trial Court record be sent back immediately.
MOOL CHAND GARG,J
FEBRUARY 25, 2009
anb
