Mohd. Javed vs The State Of N.C.T. Of Delhi
2011 Latest Caselaw 2476 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                Judgment delivered on: May 09, 2011

+      CRIMINAL APPEAL NO. 85/2005

       MOHD. JAVED                                 ....APPELLANT
               Through:      Mr. Anish Dhingra, Advocate.

                       Versus

       THE STATE OF N.C.T. OF DELHI          .....RESPONDENT

Through: Mr.Satish Aggarwala, Advocate.

CORAM:

HON'BLE MR. JUSTICE AJIT BHARIHOKE

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

AJIT BHARIHOKE, J.(ORAL)

1. This appeal is directed against the judgment of learned Special

Judge, NDPS dated 02nd November, 2004 in SC No. 34/98 and the

consequent order on sentence dated 03rd November, 2004 whereby the

appellant Mohd. Javed was convicted for having committed offence

under Section 29 read with Section 21 of NDPS Act and sentenced to

undergo RI for the period of 15 years and also to pay fine of ` 2 lakhs

and in default, to undergo SI for the period of one year.

2. Briefly stated, case of the prosecution is that on 06th March, 1998

at about 12.15 a.m. in the night, co-accused persons namely Asif

Parvez and Mohd. Akram were apprehended by the DRI officials near

Police Check Post, Singhu Border with 10.231 Kgs. of Heroin concealed

in the in-built cavities in the door and boot of the Van in which the

aforesaid accused persons were travelling. Accused Mohd. Akram

when examined under Section 67, NPDS Act categorically stated that

he had brought said Heroin to Delhi from Amritsar in the van at the

instance of the appellant Mohd. Javed, a Pakistan national whom he

had met at the house of his in-laws at Jama Masjid. On this, search of

residential premises of father-in-law of Mohd. Akram was conducted

and the passport and boarding cards of Mohd. Javed were recovered.

The passport of Mohd. Javed was shown to the co-accused Mohd.

Akram, who identified the photograph on the passport as that of Mohd.

Javed on whose direction, he had brought Heroin from Amritsar. It is

also the case of prosecution that the appellant Mohd. Javed in his

statement under Section 67, NDPS Act admitted having sent Mohd.

Akram to Amritsar for bringing Heroin to Delhi for onward delivery to a

person and he also identified the photograph of accused Mohd. Akram.

3. The appellant was charged for offence punishable under Section

29 read with Section 21 of the NDPS Act. He pleaded not guilty to the

charge and claimed trial.

4. In order to bring home the guilt of the appellant, prosecution

examined 18 witnesses. On conclusion of prosecution evidence,

incriminating evidence and material was put to the appellant in his

statement under Section 313 CrPC. The appellant claimed himself to

be innocent.

5. Learned Special Judge, on consideration of evidence, found the

appellant guilty of offence punishable under Section 29 read with

Section 21 of NDPS Act and convicted the appellant. Vide order dated

03rd November, 2004, the appellant was sentenced to undergo RI for

the period of 15 years and also to pay fine of ` 2 lakhs, in default, to

undergo SI for the period of one year.

6. Learned Sh. Anish Dhingra, Advocate, on instruction of the

appellant, submits that the appellant does not press his appeal on

merits and admits his guilt so far as factual matrix of the case is

concerned. Learned counsel for the appellant, however, has confined

his submissions to the quantum of sentence and prayed for leniency. It

is contended that the appellant deserves leniency for the reason that

he realizes his mistake and he undertakes not to indulge in any

criminal activity hereafter. Learned counsel submits that the appellant

has a large family comprising of four daughters and two sons, who are

dependants upon him for subsistence. Thus, learned counsel has

pressed for reduction of sentence from 15 years RI awarded to the

appellant to the period already undergone by him. He further submits

that the appellant is a poor man and is not in position to pay ` 2 lakhs

as fine. Thus, he has also pressed for reduction of the sentence of fine

imposed upon him.

7. Learned Sh. Satish Aggarwala, Advocate appearing for the

respondent, on the other hand, has vehemently opposed the request of

the appellant for leniency and reduction in sentence.

8. I have considered the rival contentions and perused the record.

9. On perusal of the nominal roll received under the signatures of

Superintendent, Central Jail No.3, it transpires that out of the 15 years

RI awarded to the appellant, he has already undergone actual

incarceration for the period of 12 years, 10 months and 23 days as on

28th April, 2011, which is a substantial portion of the sentence awarded

to him. Taking into account the submissions made by the appellant

and the fact that the appellant appears to be in a mood of remorse and

repentance, I take a lenient view and reduce the sentence awarded to

the appellant under Section 29 read with Section 21 of NDPS Act from

15 years RI to the period already undergone by him in custody and the

fine imposed is reduced from ` 2 lakhs to ` 1 lakh, in default, to

undergo SI for the period of one year.

10. Appeal is disposed of in the above terms.

11. Copy of the judgment be sent to the concerned Jail Superintendent

for information and necessary action.

(AJIT BHARIHOKE) JUDGE MAY 09, 2011 akb