Delhi High Court
Kuldeep Raj vs State on 8 June, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: June 08, 2017
+ CRL.A. 1188/2012 & CRL.M.A. 19000/2012
KULDEEP RAJ ..... Appellant
Through: Ms. Rakhi Dubey, Advocate
Versus
STATE ..... Respondent
Through: Mr. Amish Aggarwala, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% ORAL
1. The challenge to the impugned judgment of 23rd March, 2011, vide
which appellant has been held guilty of illegally possessing 5.072 kgs. of
diacetylmorphine (heroin) and order on sentence of 25th March, 2011,
vide which appellant has been sentenced to rigorous imprisonment for
twelve years with fine of `1,00,000/- and in default of payment of fine,
trial court has directed appellant to undergo rigorous imprisonment of six
months.
2. The facts as noted in the impugned judgment are as under:-
"The proceedings of this case have been initiated on
a complaint filed by the Directorate of Revenue
Intelligence (hereinafter referred to as DRI) through
Sh.D.P. Saxena, Intelligence Officer against the accused
Kuldeep Raj for the offence punishable U/S 21 of the
NDPS Act, 1985 on allegations that on 04.08.07 at about
05.30 pm a secret information was received by the above
IO that a person of Indian Origin, of around 28 years of
age and 5'7" of height, of wheatish complexion and
having medium built, would be standing at the bus stand,
Krishna Park, Near Pastry Palace, Vikaspuri at about
05:00 AM on 05.08.07. The above information was
conveyed by the IO to his superior officers and on their
directions a raiding team to be led by the above IO was
constituted and the accused Kuldeep Raj was apprehended
by the raiding team from the above said place, at around
the time disclosed in the secret information, and at the
time of his apprehension he was found carrying one black
colour shoulder bag. Since the place of apprehension of
the accused was a public place, he was brought to DRI
Headquarters and after compliance of the provisions of
Section 50 of NDPS Act, the search of the shoulder bag
carried by the accused was conducted and the same was
found to contain five heat sealed transparent polythene
packets, the contents of which were tested and identified to
be heroin and the net weight of heroin contained in the
above five packets was found to be 5.072 KG. since the
possession and carrying etc. of the above commercial
quantity of heroin was prohibited and was an offence
punishable under the provisions of the NDPS Act, a
complaint U/S 21 of the NDPS Act was filed against the
accused in this Court on 29.01.08 and cognizance thereof
was taken on 30.01.08."
3. While relying upon the evidence of Intelligence Officer (PW3) and
other witnesses, trial court vide impugned judgment has convicted and
sentenced the appellant as noted hereinabove while discarding appellant's
version of false implication.
4. In pursuance to the production warrants issued against appellant, he
has been produced in court in custody.
5. Learned counsel for appellant submits that though appellant has a
good case on merits but since appellant has already undergone the
sentence of nearly ten years, so it is submitted that a lenient view on the
point of sentence be taken, as appellant is not a previous convict and is a
poor person and has a family to support, which comprises of his aged
parents. It is also submitted on behalf of appellant that his conduct in jail
has been satisfactory and since appellant has undergone the minimum
sentence of ten years prescribed for the offence in question, therefore,
sentence awarded to appellant be reduced to the period already undergone
and sentence of fine imposed and default clause be correspondingly
reduced.
6. On the contrary, learned Additional Public Prosecutor for
respondent-DRI submits that conviction of appellant is duly supported
from the evidence on record and since the recovery of contraband from
appellant is heavy one, so, sentence awarded is just and proper and this
appeal deserved to be dismissed.
7. Upon hearing and on perusal of impugned judgment and the
evidence on record, I find that the conviction of appellant for the offence
is question is fully justified but the order on sentence needs to be varied
in view of the fact that the purity percentage of the recovered contraband
effectively reduces the quantity from 5 kgs odd to just above 2 kgs. It is
so noted in paragraph No.38 of the impugned judgment. Considering the
family background of appellant and the fact that his conduct in jail has
been satisfactory and that he is not a previous convict, I deem it fit to
reduce the sentence awarded to appellant to the minimum i.e. to rigorous
imprisonment for ten years. As per Section 21 (C) of The Narcotic Drugs
and Psychotropic Substances Act, 1985 in a case where the recovery is of
commercial quantity, the minimum fine to be imposed is `1,00,000/- and
so, no case for reduction of fine is made out as there are no exceptional
reasons to reduce the fine imposed. However, the sentence awarded in
default of payment of fine is reduced from rigorous imprisonment of six
months to simple imprisonment of one month.
8. This appeal is partly allowed to the extent indicated above. The
appeal and application are accordingly disposed of.
9. The concerned Jail Superintendent be apprised of the fate of this
appeal forthwith for compliance.
(SUNIL GAUR)
JUDGE
June 08, 2017
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