Mohd Hanif vs State
2013 Latest Caselaw 4238 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                          DECIDED ON         : 18th September, 2013.

+                        CRL.A.1261/2011

      MOHD HANIF                                     ....Appellant
              Through :         Mr.Sunil Mehta, Advocate.
                                VERSUS
      STATE                                            ....Respondent
                   Through :    Mr.Lovkesh Sawhney, APP.


       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J. (ORAL)

1. The appellant-Mohd.Hanif 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 an 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,

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

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 six

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 Mohd.Hanif 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. Learned

Additional Public Prosecutor has no objection to consider the mitigating

circumstances to modify the sentence order.

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

examined the record. Since the appellant- Mohd.Hanif has not opted to

challenge the findings of the Trial Court on conviction under Section

29/21 (c) of NDPS Act and there is overwhelming evidence coupled with

recovery, 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 02.12.2011, reveals that he has already undergone eight years,

two months and four days incarceration as on 30.11.2011. The period has

since increased to 9 years 11 months and 22 days. His overall jail conduct

is satisfactory. He is 81 years old and is a senior citizen. Counsel 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. Asstt. 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. It is relevant to note that in

similar circumstances co-convict Pradeep Kumar Chawla @ Chhottu was

sentenced to undergo RI for 12 years vide order dated 04.04.2013 in

Crl.A.No.860/2011. It is significant to note that co-convict Inder Singh

has since expired and the proceedings against him have been dropped as

abated.

6. 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- Mohd.Hanif is reduced from RI for

20 years to RI for 12 years with fine `1 lac and in default of payment of

fine to further undergo SI for six months under Section 29 NDPS Act, RI

for 12 years with fine of `1 lac and in default of payment of fine to further

undergo SI for six months under Section 21 (c) of NDPS Act. All the

sentences shall run concurrently. Benefit of Section 428 Cr.P.C. shall be

given and the period already undergone in judicial custody shall be

counted and set off against the sentence awarded.

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

(S.P.GARG) JUDGE September 18, 2013/sa