Babloo vs State
2013 Latest Caselaw 1068 Del

$~46
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                      DECIDED ON : 4th March, 2013

+                 CRL.A. 224/2006 & CRL.M.A.2854/2013
       BABLOO                                          ..... Appellant
                          Through :   Mr.Anish Dhingra, Advocate.

                          versus

       STATE                                          ..... Respondent

Through : Mr.M.N.Dudeja, APP.

CORAM:

HON'BLE MR. JUSTICE S.P.GARG

S.P.Garg, J. (Open Court)

1. The appellant- Babloo impugns judgment dated 02.07.2005 and order

on sentence dated 04.07.2005 of Special Judge (NDPS Act) in Sessions Case

No.64/2003 arising out of FIR No.326/2003 under Sections 20 & 21/61/85

of the NDPS Act, PS Shakarpur by which he was held guilty for committing

offences punishable under Sections 20/21/61/85 NDPS Act. He was

sentenced to undergo RI for five years with fine ` 50,000/- under Section

21 (b) NDPS Act and in default of payment of fine to further undergo SI

for five months. He was also sentenced to undergo RI for

CRL.A. 224/2006 page 1 of 5 fourteen years with fine ` 1,40,000/- under Section 20 (c) NDPS Act and in

default of payment of fine to further undergo SI for fourteen months.

2. Allegations against the accused were that on 25.07.2003 at about

08.00 P.M. near 708 JJ Camp Tri Nagar, he was found in possession of 2 kg.

and 500 gm. Charas and 110 gm. of smack. After conducting necessary

proceedings First Information Report was lodged. Statements of the

witnesses conversant with the facts were recorded. After completion of the

investigation, a charge-sheet was submitted against the accused for

committing offences punishable under Sections 21 (b) and 20 (c) of NDPS

Act. The prosecution examined six witnesses. In 313 Cr.P.C. the accused

pleaded innocence. After appreciating the evidence and considering the rival

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

convicted and sentenced the appellant. Being aggrieved, the appellant has

preferred the present appeal.

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

instructions from the appellant- Babloo stated that the appellant has opted

not to challenge the conviction under Sections 21 (b) and 20 (c) of NDPS

Act. He however, prays for modification of the order on sentence as the

CRL.A. 224/2006 page 2 of 5 appellant has already undergone more than nine years. The appellant is not a

previous convict. His overall jail conduct is satisfactory. He is poor person

and has to maintain wife and two children.

4. I have considered the submissions of the parties and have examined

the Trial Court record. Since the appellant has not opted to challenge the

findings of the Trial Court on conviction under Sections 21 (b) and 20 (c) of

NDPS Act, the order on conviction of the Trial Court stands affirmed.

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

sentenced to undergo RI for fourteen years. Nominal roll dated 20.03.2012

reveals that he has already undergone eight years seven months and thirteen

days incarceration. The said period has since increased to nine years six

months and thirteen days. Minimum sentence under Section 20 of the NDPS

Act is ten years. He is not a previous convict.

6. In the case of 'Shahejadkhan Mahebubkhan Pathan vs. State of

Gujarat', 2012 (10) SCALE 21, decided on 05.10.2012, the Supreme Court

reduced the sentence from 15 years to 10 years as the appellant therein had

already served nearly 12 years in jail. The order on payment of fine of `

1,50,000/- was upheld but default sentence was reduced from RI for 3 years

CRL.A. 224/2006 page 3 of 5 to RI for 6 months. The appellant therein was found in possession of 500

grams of brown sugar and was convicted for the offence punishable under

Section 8 (c), 21 and 29 of NDPS Act. The Division Bench of Gujarat High

Court had dismissed the Crl.A.No.11 & 75/2002 vide order dated

08.07.2002. Number of other judgments have been shown and placed on

record whereby similar relief was given in various cases by this Court.

7. Considering all these facts and circumstances of the case and in the

interest of justice, keeping in mind the peculiar facts of this case, the order

on sentence is modified and the substantive sentence of the appellant under

Section 20 NDPS Act is reduced to RI for ten years which is the minimum

sentence.

8. Regarding total fine of ` 1,90,000/-, the appellant has expressed his

inability to deposit the amount due to poverty. The amount of ` 1,90,000/-

imposed by the Trial Court cannot be reduced. However, taking into

consideration Section 30 of Cr.P.C. and the judgment of 'Shahejadkhan

Mahebubkhan Pathan vs. State of Gujarat' (supra) where the default

sentence was reduced from three years to six months, it is ordered that the

appellant shall pay a fine of ` 50,000/- and in default of payment of fine he

CRL.A. 224/2006 page 4 of 5 shall undergo SI for a period of two months instead of five months under

Section 21 (b) NDPS Act. He shall pay a fine of ` 1,40,000/- under Section

20 (c) NDPS Act and in default of payment of fine to further undergo SI for

five months instead of fourteen months.

9. The appeal filed by the appellant is disposed of in the above terms.

Crl.M.A.2854/2013 also stands disposed of. The date already fixed in the

matter i.e. 28.03.2013 stands cancelled.

10. A copy of the order be sent to Jail Superintendent, Tihar Jail. Copy be

also sent to the accused/appellant through Jail Superintendent. Trial Court

record along with copy of this order be sent back to the Trial Court.

                                                    S.P.GARG, J

MARCH        04, 2013/tr




CRL.A. 224/2006                                                page 5 of 5