Delhi High Court

Mohd Islam vs State, Nct Of Delhi on 23 September, 2011

Author: Ajit Bharihoke

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                           Judgment delivered on: September 23, 2011

+      CRIMINAL APPEAL NO.204/2011

       MOHD ISLAM                                 ....APPELLANT
               Through:         Mr. A.K. Tiwari, Advocate

                           Versus

       STATE, NCT OF DELHI               .....RESPONDENT

Through: Ms. Fizani Husain, APP

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 impugned judgment dated

15.11.2010 in NDPS case N No.18/2004 ID No.02403R0197862009 FIR

No.72/2009 P.S. Crime Branch under Section 21/29 NDPS Act and

consequent order on sentence dated 16.11.2010 whereby the appellant

has been convicted for the offence punishable under Section 21(b) of

NDPS act and sentenced to undergo RI for the period of 02 year and 06

months and also to pay fine of `20,000/-, in default thereof to undergo

simple imprisonment for a period of three months.

Crl.A.No.204/2011

2. The appellant was sent for trial on the allegations that on

21.05.2009 at 12:25 pm near Tivoli Garden, Chhatarpur, he was

apprehended and searched on the basis of secret information and he was

found in illegal possession of 260 gm of smack.

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

examined 11 witnesses in all. Statement of the accused under Section

313 Cr.P.C. was recorded wherein he denied the prosecution story. On

consideration of the evidence, learned Special Judge found the appellant

guilty of offence under Section 21(b) NDPS Act. He accordingly convicted

and sentenced him.

4. Learned Shri A.K. Tiwari, Advocate appearing for the appellant, at

the outset, on instructions from the appellant who is present in the court,

submits that the appellant admits his guilt on merits and he does not wish

to challenge his conviction under Section 21(b) of NDPS Act. Learned

counsel, however, has confined his submissions against the quantum of

sentence awarded to the appellant. It is submitted that the sentence

awarded to the appellant is too harsh. The learned trial court failed to

appreciate that the appellant is a young man and has a family to support.

Learned counsel for the appellant submits that the appellant realises his

mistake and he deserves an opportunity to reform himself as a useful

member to the society. Thus, learned counsel has vehemently urged for

reduction of the sentence awarded to the appellant.

Crl.A.No.204/2011

5. Learned APP, on the contrary, submits that considering the gravity

of the offence committed by the appellant, there is no reason for leniency

and reduction of sentence in this case.

6. I have considered the rival contentions. Sentencing of an

accused in a criminal matter is a serious exercise and the quantum

of sentence imposed commensurate with the gravity of the offence

committed by the accused and the circumstances under which the

offence was committed. While dealing with the issue of sentence for

the offences under Sections 3,4 & 6 of Terrorist and Disruptive

Activities (Prevention) Act, 1987, Supreme Court in the matter of

Karamjit Singh v. State (Delhi Admn.), (2001) 9 SCC 161,

wherein the Supreme Court, has inter alia, observed thus:

"7. ......Punishment in criminal cases is both punitive and reformative. The purpose is that the person found guilty of committing the offence is made to realise his fault and is deterred from repeating such acts in future.

The reformative aspect is meant to enable the person concerned to relent and repent for his action and make himself acceptable to the society as a useful social being. In determining the question of proper punishment in a criminal case, the court has to weigh the degree of culpability of the accused, its effect on others and the desirability of showing any leniency in the matter of punishment in the case. An act of balancing is, what is needed in such a case; a balance between the interest of the individual and the concern of the society; weighing the one against the other. Imposing a hard punishment on the accused serves a limited purpose but at the same time, it is to be kept in mind that relevance of deterrent punishment in matters of serious crimes affecting society should not be undermined. Within the parameters of the law an attempt has to be made to afford an opportunity to the individual to reform himself and lead the life of a normal, useful member of society and make his contribution in that regard. Denying such

Crl.A.No.204/2011 opportunity to a person who has been found to have committed offence in the facts and circumstances placed on record would only have a hardening attitude towards his fellow beings and towards society at large. Such a situation, has to be avoided, again within the permissible limits of law.

8. After giving our anxious consideration to the question of reduction of sentence as urged on behalf of the appellant and objected to on behalf of the respondent, we have come to the conclusion that some consideration should be shown to the appellant in the matter. In coming to this conclusion we have taken into account the facts that he has spent a long period, more than thirteen years, in jail; that he was a young man of 21 years when he committed the act giving rise to the case; that the situation then prevailing in the State of Punjab was surcharged with acts of terrorism and several misguided young men were drawn into the movement; that in the meantime the movement has subsided and it could be reasonably taken that the State is free from the menace of terrorism. In taking the decision to show some consideration to the appellant in the matter of punishment we have reposed confidence in goodness of human character which is a part of the personality of every human being. We hope and believe that our confidence will not be belied in the case of the appellant. In the facts and circumstances of the case and the changed social environment which has taken place in the meantime, it is our considered view that the sentence of life imprisonment should be modified to the period already undergone (about 13 years 7 months). Before being released from jail in the case, the appellant will notify the jail authority the place and the address at which he intends to stay, on receipt of which the jail authority will intimate the Superintendent of Police of that place with a request to him to keep the appellant under observation. If the Superintendent of Police finds that the appellant is indulging in any illegal activity which amounts to an offence under any law, he shall immediately send a report to the Registrar General of this Court. With this modification of sentence as noted above, this appeal is dismissed."

7. The appellant is a young man. He has been sentenced to undergo

RI for the period of 2½ years besides fine. As per the nominal roll

Crl.A.No.204/2011 received under the signatures of Superintendent, Central Jail No.4, New

Delhi, on 10.03.2011 the appellant had already undergone incarceration

for a period of 01 year 09 months and 19 days (actual). He is still in

custody. More than 06 months have gone by since 10.03.2011. Thus,

going by the details given in the nominal roll, by now the appellant has

undergone custody for a period of 02 years and 04 months approximately.

In my opinion, considering the amount of smack recovered from the

possession of the appellant, the imprisonment already undergone by the

appellant is sufficient and shall meet the ends of justice. Thus, taking into

account the overall facts and circumstances of this case, while