Delhi High Court
Raj Kumar vs State on 8 March, 2013
Author: S. P. Garg
$-13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : 8th March, 2013
+ CRL.A. 63/2006 & CRL.M.A.3410/2012
RAJ KUMAR ..... Appellant
Through : Mr.Ajay Verma, Advocate with
Mr.Shiv Kumar Dwivedi,
Advocate.
versus
STATE ..... Respondent
Through : Mr.M.N.Dudeja, APP.
ASI Sant Ram, PS Kotwali.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.Garg, J. (Open Court)
1. The appellant- Raj Kumar has preferred the present appeal
against the judgment and order on sentence dated 15.02.2005 of
Additional Sessions Judge, Delhi by which he was convicted for
committing offence punishable under Section 20 NDPS Act and sentenced
to undergo RI for a period of 10 years with fine of ` 1,00,000/- and in
default of payment of fine to undergo RI for a period of six months.
2. The appellant was apprehended by the police of PS Chandani
Chowk vide FIR No.224/2003 and challaned for committing offence
punishable under Sections 20/61/85 NDPS Act. It was alleged that the
appellant was found in possession of total 4 kg 35 grams of charas on
03.07.2003 at about 06.50 P.M. at Bagh Diwar near MCD office.
3. The prosecution examined twelve witnesses in all. Statement
of the accused was recorded under Section 313 Cr.P.C. No defence
evidence was led. After considering the facts on record and appreciating
the arguments of the concerned parties, by the impugned judgment the
appellant was held guilty for committing the offence punishable under
Section 20 NDPS Act and sentenced. Being aggrieved, the appellant has
preferred the present appeal.
4. During the course of arguments, learned counsel for the
appellant on instructions from the appellant- Raj Kumar stated that the
appellant has opted not to challenge the conviction under Section 20
NDPS Act. He however, prayed for modification of the order on sentence
as the appellant has already undergone sentence for about more than 9
years. The appellant is very poor and is unable to deposit the hefty fine of
`1,00,000/-. The appellant is not a previous convict.
5. 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 Section 20
NDPS Act, the order of conviction of the Trial Court stands affirmed.
6. Regarding order on sentence, it reveals that the appellant was
found in possession of total 4 kg 35 grams of charas and was sentenced to
undergo RI for a period of 10 years with fine of ` 1,00,000/-. Fine of `
1,00,000/- has not been deposited. Nominal roll dated 25.04.2012 reveals
that the appellant has already undergone sentence for 08 years, 09 months
and 24 days as on 27.04.2012. The period has since increased to 9 years 9
months approximately. It further reveals that the appellant is not a
previous convict and is not involved in any other criminal case. His
overall conduct in the jail is satisfactory.
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 substantive sentence under Section 20 NDPS Act is
maintained as it is the minimum sentence i.e. RI for 10 (Ten) years.
8. 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 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.
9. Regarding fine of ` 1,00,000/-, the appellant has expressed
his inability to deposit the amount due to poverty. The amount of `
1,00,000/- 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 ` 1,00,000/- and in default of
payment of fine he shall undergo SI for a period of three months.
10. The appeal filed by the appellant is disposed of in the above
terms. Pending application also stand disposed of.
11. 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 (if any) along with copy of this order be sent back to
the Trial Court.
(S.P.GARG)
JUDGE
MARCH 08, 2013
tr
