Pradeep Kumar Chawla @ Chhottu vs State (N.C.T. Of Delhi)
2013 Latest Caselaw 1530 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                              RESERVED ON : 13th MARCH, 2013.
                              DECIDED ON : 4th APRIL, 2013.

+                        CRL.A. 860/2011

      PRADEEP KUMAR CHAWLA @ CHHOTTU             ....Appellant
               Through : Mr.Vivek Sood, Advocate with
                         Ms.Janhavi Mahana, Advocate.
                              VERSUS
      STATE (N.C.T. OF DELHI)                            ....Respondent
                Through : Ms.Fizani Husain, APP.
       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.

1. The appellant- Pradeep Kumar Chawla @ Chhottu challenges

correctness of the judgment dated 26.04.2011 in Sessions Case No.

105/2006 arising out of FIR No. 43/2003 PS Sarai Rohilla Railway

Station by which he was convicted for committing offences punishable

under Section 29/21 (c) of Narcotic Drugs and Psychotropic Substances

Act, 1985 (hereinafter referred as NDPS Act). Vide order dated

12.05.2011, he was sentenced to undergo RI for 20 years with fine ` 2

lacs for each offence.

2. Raj Kumar Mehta, Pradeep Kumar Chawla @ Chhottu (the

appellant herein), Harjinder Singh @ Jinda, Inder Singh, Mohd.Hanif and

Harley were charge-sheeted under Sections 21/23/24/29 of NDPS Act on

the allegations that on or before 20.09.2003, they entered into a criminal

conspiracy to possess heroin illegally and unlawfully. It was further

alleged that pursuant to the said conspiracy Pradeep Kumar Chawla was

found in possession of 2 kilograms heroin. On 20.09.2003, ACP Ravi

Shanker of Inter State Crime Cell got information that Raj Kumar Mehta

was smuggling smack from Pakistan and was supplying it to other

countries through his local and foreigner conduits. A specific information

was received by ACP Ravi Shanker that on 20.09.2003 at about 01.00

P.M. Raj Kumar Mehta would come at Sarai Rohilla Railway Station to

deliver smack to an associate. A raiding party was organised. At around

01.10 P.M., Raj Kumar Mehta was seen coming from platform No.1,

Sarai Rohilla Railway Station. He stood near a toilet which was under

construction. Pradeep Kumar Chawla came and shook hands with him.

Raj Kumar Mehta exchanged the green bag in his possession with the

packet in possession of Pradeep Kumar Chawla. They were apprehended.

The green bag recovered from Pradeep Kumar Chawla contained two

packets of smack each weighting 1 Kilogram. The packet recovered from

Raj Kumar Mehta contained 23,000 US Dollars. Necessary proceedings

were conducted and First Information Report was lodged. Pursuant to Raj

Kumar Mehta's disclosure statement, Harjinder Singh @ Jinda and Inder

Singh were apprehended around 06.00 P.M. near Gol Dak Ghar. Inder

Singh was found in possession of one kilogram smack. At that time,

Harjinder Singh @ Jinda was sitting at the driver-seat of Indica Car

bearing No. HR-38-FT-9720 and at his instance the sweet box containing

one kilogram smack was recovered from the dicky of the car.

Subsequently, Mohd.Hanif, a Pak national, was apprehended at 09.00

P.M. from outside House No. H-3/45 in Sector-11, Rohini and at his

instance 2 kilograms and 50 grams smack kept in a tube and concealed

underground near Japani Park was recovered. Pursuant to Harjinder Singh

@ Jinda's disclosure statement, Harley was apprehended on 22.09.2003 at

about 01.00 P.M. from Munirka T-Point at Nelson Mandela Road near

JNU and 300 grams smack was recovered from his possession. During

investigation, two mobile phones from Pradeep Kumar Chawla and two

mobile phones and four SIM cards from Harjinder Singh @ Jinda were

recovered. Call details record revealed that all the accused persons were

connected with each other. The samples of contraband were sent to

Central Forensic Science Laboratory (CFSL), and as per its report, these

contained Diacetylmorphine (heroin). Statements of the witnesses

conversant with the facts were recorded. After completion of the

investigation all of them were charge-sheeted. The prosecution examined

seventeen witnesses to substantiate the charges. In their 313 Cr.P.C.

statements, the accused pleaded false implication. They examined three

witnesses in defence. On appreciating the evidence and after considering

the rival contentions of the parties, the Trial Court, by the impugned

judgment, convicted all the accused persons named above under Section

29 of NDPS Act and sentenced them to undergo RI for 20 years with fine

` 2 lacs each. Pradeep Kumar Chawla, Harjinder Singh @ Jinda and

Mohd. Hanif were further sentenced to undergo RI for 20 years with fine

` 2 lacs each for committing offence under Section 21 (c) of NDPS Act.

Inder Singh and Harley were further sentenced to undergo RI for 15 years

with fine ` 1.5 lacs and RI for 10 years with fine ` 1 lac respectively for

committing offence under Section 21 (b) of NDPS Act. All the sentences

were directed to operate concurrently. Convicts were given benefit under

Section 428 Cr.P.C.

3. During the course of arguments, learned counsel for the

appellant on instructions from Pradeep Kumar Chawla @ Chhottu stated

that he (the appellant) has opted not to challenge the conviction under

Section 29/21 (c) of NDPS Act. He however, prayed to take lenient view

and reduce the substantive sentence to the period already undergone by

him.

4. I have heard learned counsel for the parties and have

examined the record. Since the appellant- Pradeep Kumar Chawla has not

opted to challenge the findings of the Trial Court on conviction under

Section 29/21 (c) of NDPS Act, the order of conviction of the Trial Court

qua him stands affirmed.

5. Regarding order on sentence, it reveals that the appellant was

sentenced to undergo RI for 20 years with fine ` 2 lacs each for

committing offence under Section 29 and 21 (c) of NDPS Act. Nominal

roll dated 01.10.2011, reveals that he has already undergone 08 years and

03 days incarceration as on 30.09.2011. The period has since increased to

09 years, 06 months and 06 days. It further reveals that he is not involved

in any other criminal case. His overall jail conduct is satisfactory. Learned

APP has opposed reduction of sentence as the offence is serious and two

foreign nationals are involved in the conspiracy to smuggle contraband

into India. Learned counsel for the appellant urged that the appellant has

three children out of which two are daughters aged 20 years and 18 years.

Appellant's son is aged 12 years. His wife is a housewife and there is no

earning member in the family. The appellant has already undergone

sentence for more than nine and a half years. He relied upon 'State of

M.P. vs. Babu Lal', 2008 (1) SCC 234, to emphasize that background of

the prisoner, home life, prospects of his reformation and rehabilitation,

emotional and mental condition etc. are relevant circumstances to tilt the

scale on the propriety of sentence. Reliance was also placed on the

judgment in 'Balwinder Singh vs. Asstt. Commissioner, Custom & Central

Excise', AIR 2005 SC 2917, where the recovery was of 175 Kilograms

heroin and 39 kilograms opium and the appellant was the driver of the

vehicle from where the narcotics substances were recovered. In those

circumstances, the Supreme Court reduced the sentence from 14 years

awarded by the Trial Court to 10 years. Reliance was also placed upon the

judgment in 'M.Prabhulal vs. Assistant Director, DRI', 2003 (3) JCC 161,

where the quantity recovered was 66 kilograms heroin. The appellant was

sentenced to undergo RI for 10 years and to pay a fine of ` 1 lac. In 'Noor

Haider Siddiqui vs. Narcotics Control Bureau', Crl.A.96/2005, this Court

reduced the sentence from 20 years to 10 years though the recovery was

77 kilograms heroin. In the recent judgment 'Shahejadkhan Mahebubkhan

Pathan vs. State of Gujarat', 2013 (1) SCC 570, the Supreme Court

relying upon 'Balwinder Singh vs. Commr. Of Customs & Central Excise'

(supra), modified the sentence and reduced it from 15 years RI to the

minimum prescribed term of 10 years. The recovery was of 500 grams

brown sugar.

6. In the instant case, the appellant has suffered incarceration

for a period of about nine and a half years. He is not involved in any other

criminal case. He is not a previous convict. He was convicted in this case

for the first time. He has volunteered to deposit total fine of ` 4 lacs

imposed by the Trial Court. He is the sole earning member of the family

consisting of wife, two daughters and one son. It is stated that the purity

percentage of the contraband recovered worked out to 375 grams heroin.

7. Keeping in view the above judgments of the Supreme Court

and this Court, and peculiar facts and circumstances of this case, while

upholding the conviction of the appellant under Section 29 and 21 (c) of

NDPS Act, order on sentence dated 12.05.2011 is modified and the

substantive sentence of the appellant- Pradeep Kumar Chawla @ Chhottu

is reduced from RI for 20 years to RI for 12 (Twelve) years. Other terms

and conditions of the order on sentence are left undisturbed.

8. The appeal stands disposed of in the above terms.

(S.P.GARG) JUDGE APRIL 04, 2013/tr