Delhi High Court
Balraj @ Bante vs State on 6 April, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: April 06, 2018
+ CRL.A. 203/2011
BALRAJ @ BANTE ..... Appellant
Through: Mr.Faheem Shah, Advocate
with appellant in person.
versus
STATE ..... Respondent
Through: Mr.Kewal Singh Ahuja,
Advocate.
PRATIBHA RANI, J. (Oral)
1. The instant appeal has been preferred by the appellant
impugning the judgment 22.01.2011 and order on sentence dated
24.01.2011 passed in Sessions Case No.N-17/09 whereby he has been
convicted for committing the offence punishable under Section 21(b)
NDPS Act and sentenced to undergo RI for two-and-a-half years with
fine of `25,000/- and in default of payment of fine, to undergo SI for
six months.
2. Briefly stating, the prosecution case is that in the month of
April, 2009, Inspector Rajinder Singh Sehrawat of Special Cell
received an information that a person by the name Bante was engaged
in trafficking of Narcotic Drugs in Delhi. Insp.Rajinder Singh
deployed his source to trace Bante. On 21.04.2009 the secret informer
informed him that Bante was residing in Tilak Nagar and at about 5.30
PM he would come outside the Metro Station at Janakpuri East to
deliver narcotics to his associate. The said information was reduced
into writing in the Daily Diary and also conveyed to the superior
officers. On the directions of the superior officers, Insp.Rajinder Singh
constituted a team comprising of SI Dharmender Kumar, SI Harender
Singh, SI Rakesh Malik, ASI Sanjeev Lochar, ASI Anit Tyagi, HC
Rajender Kumar, HC Rajbir Singh, HC Mohd. Iqbal, HC Hans Raj,
Ct.Vijender Singh and Ct.Sandeep Kumar.
3. The raiding team alongwith the secret informer left the office at
about 4.45 PM and reached Shivaji Road opposite Amar Leela
Hospital Janak Puri and joined one public witness namely Praveen
Kumar to witness the proceedings. They all reached the place of
information at about 5.15 PM. At about 5.25 PM, the accused came
walking from Uttam Nagar side with a blue colour bag on his right
shoulder, who the secret informer identified as Bante. Thereafter
Bante stood near the staircase of the Metro Station and started waiting
for someone. At about 5.45 PM, Bante started moving towards Uttam
Nagar side but he was surrounded by the police party. He was
informed about the secret information and also about his legal right to
get his search conducted in the presence of a Gazetted Officer or
Magistrate. A notice under Section 50 of NDPS Act to the above
effect was also served on him. In the reply written on the notice itself,
he refused to get his search conducted before a Magistrate or a
Gazetted Officer.
4. Thereafter, Insp.Rajinder Singh searched the bag carried by
Bante which was found containing three transparent polythenes full of
brown coloured powder. The said brown coloured powered of all the
three polythenes was checked with the help of Narcotics Drugs
Detection Kit and the test was found positive for smack. On
weighing, the two polythenes were found to be of 2 kgs. each and the
third polythene was found to be of 750 gms. Thereafter, samples from
each polythene were drawn and proceedings regarding seizure and
sealing of the case property were conducted. Rukka was sent for
registration of the case and the appellant was arrested in this case.
After completion of investigation, chargesheet was filed.
5. The appellant pleaded not guilty to the charge framed under
Section 21(b) of NDPS Act. The prosecution examined 12 witnesses
all in support of its case. Statement of the appellant under Section 313
of the CrPC was recorded to enable him to explain the incriminating
evidence appearing against him. After trial, the learned Trial Court
held the appellant guilty for committing the offence punishable under
Section 21(b) of NDPS Act observing that it was a case of recovery of
4.750 kg of heroin and as per the FSL Report, the samples contain
diacetylmorphine with its purity 3.3%, 2.6% and 3.4%. It was further
observed that in view of the law laid down in Anasar Ahmed vs. State
2005 (4) RCR (Crl.) 393, the net recovery in this case is 133.5 gms,
which is an intermediate quantity but less than the commercial
quantity. The appellant was sentenced for the said offence in the
manner stated above.
6. Appellant is present in person alongwith his counsel. Learned
counsel for the appellant, on instructions, submits that appellant is not
challenging his conviction in this case. However, prayer has been
made for taking a lenient view on the quantum of sentence.
7. Since the appellant is not challenging his conviction under
Section 21(b) of NDPS Act, the same is upheld.
8. Now coming on the quantum of sentence, learned counsel for
the appellant submits that out of the total substantive sentence of 30
months, the appellant has already undergone the sentence of 23
months. He is 48 years old and has three daughters. He is totally blind
and needs an attendant for his routine activities. Learned counsel for
the appellant prays that a lenient view may be taken on the point of
sentence.
9. On 27.11.2017, the appellant appeared in person alongwith his
counsel and made submissions to the effect that he does not want to
challenge his conviction in this case and only prayed for a lenient view
on the quantum of sentence. He also placed on record his medical
papers. The proceedings dated 27.11.2017 are extracted hereunder:-
"1. By way of this appeal, the appellant is challenging
the judgment dated 22nd January, 2011 and order on
sentence dated 24th January, 2011 whereby he was
convicted under Section 21(b) of NDPS Act, 1985 and
directed to undergo RI for a period of two years and six
months and to pay a fine of `25,000/- in default to undergo
SI for six months.
2. Today learned counsel for the appellant, on
instructions from the appellant, who is also present in the
Court, submits in writing that the appellant is not
challenging his conviction in this case and a lenient view
may be taken on the quantum of sentence. Learned counsel
for the appellant has also placed on record medical papers
of the appellant.
3. Since the medical papers placed on record pertain
to the year 2016, the appellant is directed to get himself
checked from any reputed government hospital to ascertain
current status of his vision and place them on record on the
next date of hearing.
4. Renotify for 15th December, 2017.
5. It is made clear that on the next date of hearing
appellant is not required to appear in person."
10. Thereafter, on 20.12.2017 the appellant has placed on record the
copy of the OPD slip from Dr.Rajendra Prasad Centre for Opthalmic
Sciences where he was examined on 9th December, 2017. On that
date, the State sought time to verify the medical record of the
appellant and submit the report.
11. On 05.01.2018, the State filed the report from Dr.Radhika
Tandon, Professor of Opthamology, Dr.R.P.Centre for Opthalmic
Sciences, All India Institute of Medical Sciences, New Delhi, which is
to the following effect:
"As per available record, the patient was seen in unit 6
OPC on 09 Dec. 2017. He was noted to have features of
pseudophakia both eyes with choroiditis both eyes with
past record of traumatic cataract and traumatic optic
neuropathy, was lost to follow up and had come back for
handicap certificate. His vision was documented as right
eye no light perception and left eye only light perception
with inaccurate projection.
He was advised to submit the application for
handicapped certificate and also guided to show in Neuro-
Opthalmology clinic and urea clinic for expert opinion and
further management"
12. Today the appellant has been brought to the Court on the
wheelchair. Pursuant to the order dated 23.03.2018, the appellant has
also placed on record the certificate issued by Dr.Pushpendra
N.Renjen, Senior Consultant Stroke, Coordinator-Neurology, Apollo
Hospital, New Delhi to the following effect:-
„This is to certify that Mr.Balraj S.K. is having suffered
from .......visual loss. He has a lymphoma in the brain. He
cannot attend to his work.‟
13. Taking into consideration the submissions made on behalf of
the appellant and his present status that he is totally blind now and has
already undergone the substantial part of the substantive sentence
awarded to him in this case i.e. 23 months out of the total substantive
sentence of 30 months, the substantive sentence awarded to the
appellant for committing the offence punishable under Section 21(b)
of NDPS Act is reduced to the period already undergone by him in
this case. However, the fine imposed on the appellant is enhanced.
The sentence of fine awarded by learned Trial Court is enhanced from
₹25,000/- to `35,000/-.
14. Learned counsel for the appellant submits that vide order dated
21.02.2011, the substantive sentence of the appellant was suspended
till disposal of the appeal and since there was no direction for
depositing the fine amount while suspending the substantive sentence
of the appellant, the fine amount was not deposited. Learned counsel
submits that the appellant is ready and willing to deposit the fine
amount of ₹35,000/- (`25000/- imposed by the learned Trial Court and
the enhanced fine amount of `10,000/- by this Court).
15. The appellant is directed to deposit the fine amount of `35,000/-
with the Registry within two days and place on record the copy of the
receipt.
16. It is made clear that if the fine amount of `35,000/- is not
deposited by the appellant today itself, he shall undergo SI for six
months in default of payment of fine.
17. The appeal is partly allowed modifying the order on sentence to
the above extent.
18. TCR be sent back alongwith copy of this order. Copy of this
order be sent to the concerned Jail Superintendent for information.
As prayed, copy of the order be given dasti to learned counsel
for the appellant under the signature of Court Master.
PRATIBHA RANI
(JUDGE)
APRIL 06, 2018
'st‟
