Sarvesh Kumar Bhatia vs Narcotics Control Bureau & Anr.
2016 Latest Caselaw 6062 Del

$~17
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    DECIDED ON : 16th SEPTEMBER, 2016

+       CRL.A.1203/2014, CRL.M.A.2892/2016 & CRL.M.B.1408/2016
        SARVESH KUMAR BHATIA                                  ..... Appellant
                              Through :    Mr.Pawan Sharma, Advocate.
                              versus
        NARCOTICS CONTROL BUREAU & ANR.                       ..... Respondents
                              Through :    Mr.Rajesh Manchanda, Advocate
                                           with Mr.Rajat Manchanda, Advocate.

        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J. (Oral)

1. The instant appeal has been filed by the appellant - Sarvesh Kumar Bhatia to challenge the legality and correctness of a judgment dated 17.08.2013 of learned Additional Sessions Judge in Sessions Case No.61/08 by which he was held guilty for committing offence punishable under Section 20(b)(ii)(C) read with Section 29 NDPS Act. By an order dated 31.08.2013, he was awarded RI for ten years with fine `1.5 lacs under Section 20(b)(ii)(C) NDPS Act; RI for ten years with fine `1.5 lacs under Section 29 NDPS Act. The sentences were to operate concurrently.

2. Briefly stated, the prosecution case as stated in the complaint was that on 31.01.2007, R.R.Kumar, Superintendent, NCB received a secret information that the appellant along with his associates Julian and

Gautambhai Gheewala @ LD was indulging in illicit business of huge quantity of charas and was supplying it to oversea parties and that they had already booked a container for Canada wherein huge quantity of charas has been concealed and that the said container had left Nhawa Sheva port, Mumbai on 14.01.2007. It was also informed that the appellant had also taken a godown at village Holambi Kalan, PS Narela on rent from one Naresh Tyagi and in the said godown, looked after by Rakesh, a trusted employee of the appellant, huge quantity of charas has been stocked inside a container lying in the godown and that there is also a possibility of recovery of charas from the residential premises of the appellant and his Wagon R car No. DL 9CA 5859 also usually parked near his residence on the service lane of GT Karnal Road, opposite Derawal Nagar bus stop. The said information was reduced into writing and was immediately put up before A.Shankar Rao, Zonal Director, NCB. Two raiding teams were constituted. One raiding team, constituted by IO Ajay Kumar consisting of IO Vikas Kumar, IO Akhilesh Kumar and Hawaldar Jagdish Singh proceeded from NCB office at 09.30 hours in two official vehicles and reached at about 1035 hours, a service lane behind Derawal Nagar bus stand, near the house of accused. The second raiding team constituted by IO NS Yadav consisting of IO Prem Khanduri, IO Raj Kumar, Hawaldar Shiv Rattan and Farash Sudhir Nayak proceeded from NCB office at 0900 hours in two official vehicles and reached at about 1045 hours, the godown of Naresh Tyagi, village Holambi Kalan, Delhi. After search of appellant's car four brownish black solid slabs wrapped in khaki tape were recovered from a green polythene kept under the driver seat. On testing the said substance, it gave positive result for hashish. The total weight of the recovered substance came out to be 870 grams. Two

samples of 25 grams each were drawn out from each of the four packets. The other raiding team was successful to recover 1209 kg. of Hashish from the appellant's godown. Relevant proceedings were conducted at different stages of investigation. Statements of the witnesses conversant with the facts were recorded. Upon completion of investigation, a complaint was filed against the appellant along with Rakesh Kumar (since acquitted), Julian Kanoui (since Proclaimed Offender) and Gautambhai Gheewala (since Proclaimed Offender). The trial resulted in his conviction as aforesaid.

3. It is relevant to note that co-accused Rakesh Kumar was acquitted of the charge.

4. During the course of arguments, appellant's counsel on instructions stated at Bar that the appellant has opted not to challenge the findings of the Trial Court on conviction. He, however, prayed to modify the sentence order as the appellant has already undergone substantive sentence awarded to him. He is unable to pay the huge fine being in custody for the last about eight years.

5. Since the appellant has opted to accept the findings of the Trial Court on conviction and there is ample evidence to prove the allegations, his conviction under Section 20(b)(ii)(C) read with Section 29 NDPS Act is affirmed.

6. Regarding Sentence Order, it transpires that he has already undergone almost the entire substantive sentence awarded to him. Nominal Roll dated 04.03.2015 reveals that he has remained in custody for six years, seven months and twenty-six days as on 03.03.2015. He is not involved in any other criminal case and is not a previous convict; his overall jail conduct is satisfactory. Substantive sentence i.e. RI for ten years each under both the

heads can't be modified or altered as it is the 'minimum' sentence prescribed under the Act.

7. 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.

8. Taking into consideration Section 30 of Cr.P.C. and the judgment of 'Shahejadkhan Mahebubkhan Pathan vs. State of Gujarat', (supra), the sentence order is modified to the extent that default sentence for non-payment of total fine `3 lacs shall be SI for one and a half month under both the offences. Other terms and conditions of the sentence order are left undisturbed.

9. Appeal stands disposed of in the above terms. Pending applications also stand disposed of. Trial Court record be sent back forthwith with the copy of the order. A copy of the order be sent to the Superintendent Jail for information.

(S.P.GARG) JUDGE SEPTEMBER 16, 2016 / tr