Delhi High Court
Rashmi vs State on 27 March, 2015
$
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 27th March, 2015
+ Crl.A. 141/2013
RASHMI ..... Appellant
Through: Mr Ajay Verma and Ms Neha Singh,
Advocates
versus
STATE ..... Respondent
Through: Mr O.P. Saxena, Additional Public
Prosecutor for the State alongwith SI
Varun Dalal from Police Station Gulabi
Bagh, Delhi
+ Crl.A. 496/2013 & Crl. MB 8655/2014
UTPAL BARMAN ..... Appellant
Through: Ms Saahila Lamba, Advocate
versus
STATE (GOVT. OF NCT) DELHI ..... Respondent
Through: Mr O.P. Saxena, Additional Public
Prosecutor for the State alongwith SI
Varun Dalal from Police Station Gulabi
Bagh, Delhi
CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA
J UD G M E N T
: SUNITA GUPTA, J.
1. Vide this common judgment, I shall dispose of two criminal appeals
being Crl. Appeal Nos.141/2013 and 496/2013 filed by appellants - Rashmi
and Utpal Barman respectively as the same have arisen out of a common
judgment dated 06.09.2012 and order on sentence dated 13.09.2012 passed
by learned Special Judge, NDPS in Sessions Case No.22/2011 arising out of
FIR No.26/2011 under Section 20 of Narcotic Drugs and Psychotropic
Substances Act (for short, the "NDPS Act") Police Station Gulabi Bagh,
Delhi whereby appellants were convicted under Section 20 of the NDPS Act
and were sentenced to undergo rigorous imprisonment for five (5) years and
to pay fine of Rs.25,000/-; in default to undergo simple imprisonment.
2. During the course of arguments, learned counsel for the appellants
submits that they do not challenge the legality of the order of conviction
vide which the appellants were convicted under Section 20 of the NDPS
Act, but prayed for leniency in quantum of sentence on the ground that out
of five years sentence awarded to them, they have already undergone
sentence for a period of four years. Moreover, no minimum sentence is
prescribed under Section 20 of the NDPS Act. The appellants were ordered
to be released on bail but due to financial constrains they could not avail that
benefit. Moreover, the appellant - Utpal Barman was only twenty years of
age as such the appellants be released on the period already undergone and
the fine be also reduced to the minimum. In support of their submissions,
reliance has been placed on a judgment of this Court in Lakhi Chand
Paswan v State (NCT of Delhi) [Crl. Appeal No.868/2013). The prayer is
opposed by learned Additional Public Prosecutor for the State on the ground
that the appellants have already been treated very leniently and there is no
ground for reduction of sentence.
3. So far as the conviction of appellants under Section 20 of the NDPS
Act is concerned, the same was rightly not challenged by the learned counsel
for the appellants inasmuch as according to prosecution case, the appellants
were found in possession of 16.600 gms and 16.640 gms of ganja
respectively. In order to substantiate its case, prosecution in all examined 11
witnesses. The case of the appellants was one of denial simplicitor and it
was pleaded that that they have been falsely implicated in this case. After
scrutinizing the testimony of prosecution witnesses which revealed that on
21.03.2011 both the appellants were apprehended at about 7.30 pm near
Kishan Ganj railway station by the patrolling party comprising of ASI
Sunder Singh, HC Sunil and Ct. Anil when the appellants were found sitting
inside the bushes in suspicious condition and were found carrying travel
bags. Since the appellants could not give any satisfactory reply regarding the
bags, they were checked and on opening the bags, packets having ganja
were recovered. The SHO was informed about the recovery. Notice under
Section 50 of the NDPS Act was served upon the appellants/accused
apprising them that they had the right to be searched in the presence of a
gazetted officer, however, they refused to be searched in the presence of any
gazetted officer. Thereafter, remaining proceedings regarding recovery of
ganja, taking weight of sample, sending them to FSL were completed and as
such the appellants were convicted for the offence alleged against them. No
fault can be found with the findings of the learned Trial Court.
4. Coming to the quantum of sentence, the appellants were awarded
sentence of five years. As per the nominal rolls they have already undergone
a period of four years. In Lakhi Chand Paswan (supra), reliance was placed
on Edom Simon Chimezie v. State of NCT of Delhi [Crl.Appeal No.
613/2014] wherein the accused was convicted under Section 21(b) of NDPS
Act and Section 14 of the Foreigners Act and sentenced to undergo
maximum period of imprisonment for four years and fine. Relying upon the
decision of Hon'ble Apex Court in E. Michael Raj v. Intelligence Officer,
Narcotic Control Bureau, (2008) 5 SCC 161 and a decision of a Coordinate
Bench of this Court in Crl.A.No.466/2014 titled as State v. Hari Krishan
Guthala & Ors. rendered on 21st April, 2014 it was held that the sentence
awarded to the appellant was quite excessive and the appellant who
remained behind the bars for two years four months and twenty one days,
was sentenced to the period already undergone. As such relying upon these
judgments in Lakhi Chand Paswan (supra), since the appellants had already
undergone more than four years, as such the substantive sentence was
reduced to the period already undergone by the appellants.
5. In view of the nominal rolls of the appellants submitted by the
Superintendent Jail, according to which appellants have already undergone
sentence of four years, coupled with the fact that as per the status report
submitted by the State, the appellants are not involved in any other case, the
substantive sentence awarded to the appellants is modified to the period
already undergone by them while keeping the sentence of fine unaltered.
Accordingly, the appeals are partly allowed.
Trial Court record be sent back forthwith alongwith a copy of this
judgment.
A copy of this order be also sent to the Superintendent Jail for
information and compliance.
(SUNITA GUPTA)
JUDGE
March 27, 2015
rd
