Delhi High Court
Baldev Singh vs Directorate Of Revenue ... on 12 December, 2017
$~R-9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: December 12, 2017
+ CRL.A. 355/2013
BALDEV SINGH ..... Appellant
Through: Mr.Anwesh Madhukar,
Advocate for DHCLSC with
Mr.Pranjal Shekhar, Advocate
versus
DIRECTORATE OF REVENUE INTELLIGENCE ..... Respondent
Through: Mr.Satish Aggarwal, Advocate
PRATIBHA RANI, J. (Oral)
1. The appellant has preferred the instant appeal under Section 374
CrPC against the judgment dated 4th January, 2013 and order on
sentence dated 9th January, 2013 and order on sentence dated 9 th
January, 2013 whereby he has been convicted for committing the
offence punishable under Section 21(c) NDPS Act and sentenced to
undergo RI for 15 year with fine of `1,50,000/- and in default of
payment of fine, to undergo SI for a period of 6 months with benefit of
Section 428 Cr.P.C.
2. Briefly stating the case of prosecution is that on 2.6.2009 at
about 7.20 pm the appellant was found in possession of commercial
quantity of 'Heroin' which was being carried by him in Scorpio
No.DL-4C-NB-1092. The appellant was arrested from near Metro
Pillar No.763, Uttam Nagar while he was proceeding towards Mohan
Garden side. After completion of investigation, the appellant was
chargesheeted for committing the offence punishable under Section 21
of NDPS Act.
3. On the basis of material produced by the prosecution, the
appellant was charged for committing the offence punishable under
Section 21(c) of NDPS Act. The prosecution produced 16 witnesses
in all to prove its case. After trial, relying on the testimony of
prosecution witnesses, the learned Trial Court convicted the appellant
for the offence punishable under Section 21(c) of NDPS Act and
sentenced him in the manner stated above.
4. The appellant has been produced from judicial custody and
represented by Mr.Anwesh Madhukar, Advocate from Delhi High
Court Legal Services Committee (DHCLSC).
5. The appellant has submitted a hand written application in
'Gurumukhi' that he does not want to challenge his conviction and has
prayed for taking a lenient view on the quantum of sentence. Learned
counsel for the appellant submits that he has translated the contents of
the application in English after verifying its correctness. Copy of the
application has also been given to learned counsel for the respondent.
6. Since the appellant is not challenging his conviction and has
prayed for a lenient view on the quantum of sentence, Mr.Satish
Aggarwal, learned counsel for Directorate of Revenue Intelligence
submits that the sentence awarded to the appellant may not be reduced
for the reason that he is a previous convict which has also been noted
by the learned Trial Court in para 4 & 5 of order on sentence dated 9 th
January, 2013.
7. Learned counsel for the appellant submits that the appellant had
been in custody for a period of about nine years. He has been
convicted under Section 21(c) NDPS Act and sentenced to undergo RI
for 15 years with fine of `1,50,000/- and in default of payment of fine,
to undergo SI for a period of six months. The minimum sentence
provided for the offence is ten years. The family circumstances of the
convict have already been noted by the learned Trial Court that his
wife is paralytic. The convict himself is also an old person aged about
64 years and suffering from diabetes, hypertension and various old age
ailments. He is not even able to stand without support.
8. Learned counsel for the appellant further submits that during the
trial of SC No.56A/09, DRI did not prove the factum of previous
conviction. Certain submissions made at the stage of order on
sentence on behalf of the parties in itself cannot be considered as a
proof of the appellant being a previous convict so as to disentitle him
to the benefit of lesser sentence.
9. Mr.Satish Aggarwala, learned counsel for DRI does not dispute
that DRI has not pleaded and proved the previous conviction of the
appellant before the learned Trial Court. However, he contends that
during submissions on the order of sentence, on inquiry from the
Court, the appellant herein did mention about his previous conviction.
10. It is necessary to prove the previous conviction of the accused
in order to determine proper sentence. Even if there is no doubt that
the accused was previously convicted, it could be unfair to take prior
conviction into account when they were neither proved nor mentioned
in the charge. The previous conviction means the conviction of the
accused for the specified offence earlier. Section 211 (7) of the Code
of Criminal Procedure 1973 lays down that the specific charge of
previous conviction has to be framed and put to the accused if the
accused by reason of such previous conviction is liable to enhanced
punishment, which is reproduced below for the sake of convenience.
"211. Contents of charge(1) Every charge under this
Code shall state the offence with which the accused is
charged.
.........................
.........................
(7) If the accused, having been previously convicted of
any offence, is liable, by reason of such previous
conviction, to enhanced punishment, or to punishment of
a different kind for a subsequent offence, and it is
intended to prove such previous conviction for the
purpose of effecting the punishment which the Court may
think fit to award for the subsequent offence, the fact date
and place of the previous conviction shall be stated in the
charge; and if such statement has been omitted the Court
may ad it at any time before sentence is passed."
11. In view of the above legal position, the submissions made on
behalf of DRI that leniency on the quantum of sentence has to be
denied to the convict on account of his previous conviction, is
rejected.
12. Learned counsel for the appellant has submitted that the
appellant is an old person aged about 64 years and not having the
financial capacity to deposit the fine of ₹1,50,000/-. He is suffering
from various old age related ailments and is not even able to stand
without support. The wife of the appellant is paralytic.
13. As per latest nominal roll of the appellant, in column No.14 i.e.
'Nature of labour performed by convict', it is mentioned that no labour
work is allotted to the appellant being of old age.
14. Taking into consideration the submissions made on behalf of
the convict and that as per the nominal roll, he has not been allotted
any labour work being of old age, the substantive sentence of the
appellant for committing the offence punishable under Section 21(c)
NDPS Act is reduced from fifteen years to ten years.
15. Learned counsel for the appellant submits that in view of the old
age of the appellant and his family circumstances, the sentence of fine
and the period of sentence required to be undergone by him in default
of payment of fine may be reduced.
16. The issue of reducing the sentence awarded to a convict in
default of payment of fine because of his financial condition has been
dealt with by the Division Bench of Madras High Court in the case of
M. Balasubramanian Vs. State 2012 Cri LJ 2486. The relevant
portion of report is extracted herein below:-
"27. When a person is very poor and because of his
poverty he could not pay the fine amount and is ordered
to remain in jail even after the period of substantive
sentence of imprisonment is over, a serious prejudice
would be caused to the person. This principle has been
laid down by the Apex Court in MANU/SC/3895/2007 :
2007 (11) SCC 243 (Shantilal vs. State of M.P.),
28. In the words of Justice V.R. Krishna Iyer, Equally
meaningful is the import of Article 21 of the Constitution
in the context of imprisonment for non-payment of debts.
The high value of human dignity and the worth of the
human person enshrined in Article 21, read with Articles
14 and 19, obligates the State not to incarcerate except
under law which is fair, just and reasonable in its
procedural essence.
It is too obvious to need elaboration that to cast a person
in prison because of his poverty and consequent inability
to meet his contractual liability is appalling. To be poor,
in this land of ' Daridra Narayanans' (land of poverty) is
no crime and to recover debts by the procedure of putting
one in prison is too flagrantly violative of Article 21
unless there is proof of the minimal fairness of his wilful
failure to pay in spite of his sufficient means and absence
of more terribly pressing claims on his means such as
medical bills to treat cancer or other grave illness.
Unreasonableness and unfairness in such a procedure is
inferable from Article 11 of the Covenant. But this is
precisely the interpretation we have put on the proviso to
section 51, C.P.C and the lethal blow of Article 21 cannot
strike down the provision, as now interpreted."
17. Considering the facts and circumstances of the case and the
submission made on behalf of the appellant as well as the observations
of the Madras High Court in M. Balasubramanian Vs. State (Supra),
the sentence of fine of ₹1,50,000/- is reduced to ₹1,00,000/- and the
period of sentence required to be undergone by the Appellant in
default of payment of fine is reduced to three months.
18. Resultantly, the appeal stands allowed to the extent that while
maintaining the conviction of the Appellant under Section 21(c)
NDPS Act, substantive sentenced awarded to him for the said offence
is reduced from fifteen years to ten years and fine amount of
₹1,50,000/- is reduced to ₹1,00,000/- and the period of sentence
required to be undergone by the appellant in default of payment of fine
of Rs.1,00,000/- is reduced to three months.
19. A copy of this order be also sent to the Jail Superintendent
concerned for information and compliance and be also given dasti to
learned counsel for the appellant.
20. Trial Court record be sent back along with copy of this order.
CRL.M.A.942/2017 (destruction of case propery)
1. This application has been filed by the respondent under Section
482 Cr.P.C. seeking permission to destroy/dispose of the case
property, representative samples and foreign currency.
2. For the reasons stated in the application, the application is
allowed.
PRATIBHA RANI, J.
DECEMBER 12, 2017
'hkaur'
