District Kangra vs Unknown
2021 Latest Caselaw 5754 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                                 BEFORE




                                                                .
    HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA





                 CRIMINAL APPEAL NO. 218 OF 2017





    Between

    RAVI KUMAR S/O SH. HARI
    RAM, R/O VILLAGE PALWANA,
    POLICE STATION, TEHSIL AND




    DISTRICT KANGRA, H.P.
                        r                                  ....APPELLANT

    (BY SH VISHWA BHUSHAN, ADVOCATE)

    AND

    STATE OF HIMACHAL PRADESH
                                                         ....RESPONDENT



    (BY SH. ARVIND SHARMA, ADDITIONAL
    ADVOCATE GENERAL)




    Reserved on 27th November, 2021





    Decided on 15th December, 2021

    Whether approved for reporting ? Yes.
    _________________________________________________





                This appeal was heard and reserved and the Court passed

    the following:

                            JUDGMENT

The appellant, hereinafter to be referred as 'the accused'

was convicted and sentenced under Section 20 of the Narcotic Drugs

and Psychotropic Substances Act, 1985 in short 'the Act' for holding

1 KG 'charas'. Vide impugned judgment, the accused was sentenced

.

to undergo rigorous imprisonment for a period of nine years and to

pay fine of rupees 20,000/-. In default of payment of fine, accused

shall also undergo simple imprisonment for a period of six months,

hence the present appeal preferred by the accused/convict.

2. Brief facts necessary for adjudication of the appeal are

that Head Constable Roop Singh PW-8, Investigating Officer, Police

Post Banikhet alongwith Constable Sanjay Kumar PW-2 and some

other police officials were on Nakabandi and traffic checking duty at

Kheri Bridge, Banikhet. At about 9 pm, when the police party

consisting of HC Roop Singh PW-8, Constable Sanjay Kumar PW-2

HHC Mazi Mohammad, Constable Ram Prakash, Excise and

Taxation Inspector Naresh Chand PW-1 and one Purshottam were

present on the bridge, the accused came walking from the side of

Kheri side carrying back on his right shoulder. On seeing the policy

party he got scared and had tried to run back. On suspicion he was

apprehended. On inquiry, he naratted his name as Ravi Kumar son of

Sh. Hari Ram. Head Constable Roop Singh then apprised him about

of his right of being searched either before a Magistrate or a Gazetted

Officer. He consented to be searched by the policy party. Memo Ext.

PW1/A was prepared. HC Roop Singh along with other police

officials, Excise and Taxation Inspector and the public witnesses had

.

offered themselves to be searched by the accused. Memo Ext. PW1/D

was prepared and nothing incriminating was recovered from his

person. HC Roop Singh then conducted the search of the bag, Ext. P2,

which the accused was carrying. A polythene envelope Ext.P3 was

found to be there in the bag. On search, the polythene envelope was

found containing in it a black coloured substance in the shape of

sticks and balls. It was identified to be Charas Ext. P4. The Charas

was weighed with the help of a traditional weighing scale and it was

found to be 1 Kg. The Charas was then put back in the same

polythene envelope and the envelope was then put back in the same

carry bag. The bag was then packed and sealed in a parcel Ext. P-1

and sealed with five seals of impression X. Sample seal was taken on

a piece of cloth Ext. PW1/B. NCB-1 form Ext. PW6/C was filled in

triplicate. The seal impression X was put on the NCB-1 forms. The

seal after use was handed over to Purshottam. The parcel containing

the Charas was seized vide memo Ext. PW1/C . Rukka Ext PW-8/A

was prepared and it was handed over to constable Sanjay Kumar with

the direction to carry it to Police Station, Dalhousie for registration of

the FIR. A carbon copy of Rukka Ext. PW 7/A was also sent through

constable Ram Prakash to Superintendent of Police, Chamba. ASI

Jeet Singh PW-6 registered the FIR Ext. PW6/A, made an

.

endorsement on Rukka and had sent the case file to the spot. The

investigation was conducted by HC Roop Singh, who prepared the

site plan Ext. PW8/B and recorded the statements of the witnesses.

The accused was arrested vide memo Ext PW-1/E. The case property

consisting of parcel, NCB-1 form in triplicate and sample seal X were

handed over to ASI Jeet Singh PW-6, who was officiating as Station

House Officer, Police Station, Dalhousie, at the relevant time for

resealing the parcel. ASI Jeet Singh had resealed the parcel with two

seals of impression H. Specimen seal impression of seal H was taken

on a piece of cloth Ext. PW1/B. The case property along with

documents was handed over to MHC Bhajan Singh, PW-3. MHC had

made an entry in the register of Malkhana, copy of which is Ext.

PW3/A and had deposited the same in Malkhana. The case property

alongwith documents was handed over to HHC Kamal Kumar PW-4

with the direction to carry it to State FSL, Junga vide R.C No.

151/2009, copy of which is Ext. PW3/B. HHC Kamal Kumar carried

all these articles to State FSL, Junga in safe condition and handed

over the receipt to the MHC on his return. The special report Ext.

PW7/B was prepared and sent through Constable Mazid Mohammad

to Superintendent of Police, Chamba. The Superintendent of Police,

Chamba had made an endorsement on the special report and had

.

handed it over to his Reader. He had also handed over the carbon

copy of Rukka to his Reader after making an endorsement on it. HC

Subhas Chand PW-7 had made an entry in the relevant register

regarding the receipt of the carbon copy of Rukka and the special

report and had filed them on record.

3. In order to prove its case, the prosecution examined as

many as eight witnesses. The statement of the accused, under Section

313 Cr.P.C, was recorded and he claimed innocence. No witness, in

defence, was examined by the accused.

4. Feeling aggrieved by the judgment of learned trial court, the

appellant has preferred and maintained the instant appeal before this Court.

5. I have heard Mr. Vishwa Bhushan, learned counsel for

the appellant and Mr. Arvind Sharma, learned Additional Advocate

General for the respondent-State and also gone through the records of

the case.

6. Ms. Vishwa Bhushan, learned counsel for the appellant

has argued that there is no compliance of Section 50 of the NDPS Act

and though the Charas was recovered from the bag but his personal

search was taken without complying of Section 50 and so the trial is

initiated and recovery cannot be considered and the accused be

acquitted.

.

7. On the other hand, Mr. Arvind Sharma, learned

Additional Advocate General has argued that accused cannot be

acquitted, as the Charas was recovered from the bag and in these

circumstances the findings as recorded by learned court below are just

reasoned and are in accordance with law.

8. In rebuttal, learned counsel for the appellant has argued

that the appellant is sole bread earner and he was never involved in

any other case. He has further submitted that the appellant is having

old mother to look her after and taking into consideration his conduct

in the jail for the last 4 years and 8 months, he requires leniency and

he is required to be released. In support of his argument he has relied

upon a judgment of Hon'ble Supreme Court in case titled as SK.

Sakkar @ Mannan Vs. State of West Bengal, extract whereof is

extracted hereinbelow:

"xx xx xx 9. Faced with this, learned Senior Counsel for the appellant relies upon several mitigating circumstances to persuade us to reduce the sentence period. He passionately urged that: (I) the appellant has suffered protracted trial for more than 23 years; (ii) he alone has been convicted while his co- accused are acquitted; (iii) the appellant was not involved in any other case under the NDPS Act or other Penal Laws; (iv) the appellant has already undergone actual sentence of 2 years 4 months and 16 days out of the total sentence of five years; (v) and that the appellant has not misused the concession of bail granted by this Court on 02.11.2012. xx xx xx"

9. Investigating Officer, PW-8 HC Roop Singh, deposed

that 1 KG charas was recovered from the exclusive and conscious

.

possession of accused. He has also proved all the relevant documents

prepared during the course of the Investigation, at the spot, and

thereafter at the police station. He also deposed that entire

proceedings were carried out in the presence of independent

witnesses and Excise and Taxation Inspector. In the cross-

examination, he stated that ETI Naresh Chand was called to the spot

on telephone. Some evidence were checked at the spot. It was dark at

the spot, but there was a street light. He feigned ignorance if the

accused coming from Kheri road could have noticed the police

standing on the road under the street light. It took about three hours to

complete the proceedings. Rukka was sent at 10.15 PM through

constable Sanjay. He categorically denied that no Charas was

recovered at the spot and the accused had falsely been implicated in

the case.

10. PW-1 Naresh Chand, has deposed that on 16.10.2009, he

alongwith ASI Yudhir Singh and on Purshottam was present at Kheri

bridge, Banikhet. At about 9 am, accused came from the side of

Kheri, having a bag on his right shoulder. On seeing the police party,

accused got perplexed and turned back. A suspicion arose and he was

nabbed. On inquiry, he divulged his antecedents. ASI Yudhbir Singh

informed the accused of his legal right to be searched either before a

.

Gazetted Officer or a Magistrate. The accused had consented to be

searched by the police party. Memo Ext. PW1/ A was prepared in his

presence and in the presence of Purshottam. Thereafter, accused was

brought to the Police Station. Prior to that bag of the accused was

searched and it was found containing a polythene envelope having

Charas. The charas was weighed at the Police Station. On

weightment, it was found to be 1Kg. The charas was then packed and

sealed in a parcel with seal impression. 'X' Specimen of seal

impression Ex.PW1/B was also taken and seal was retained by the

ASI himself. In the cross-examination he deposed that all

proceedings were conducted at the spot. Seizure Memo was prepared

at the spot,which bears his signatures and one Purshottam and copy of

the same was given to the accused free of costs, who had also signed

it. He admitted that before conducting search of the accused, the

police officials including himself had given search to the accused, but

nothing incriminating was found. He stated that the seal after use was

given to witness Purshottam. The Charas had been weighed at the

spot by the police with the weights and scales which were there in the

I.O. Kit. In his cross-examination by the accused, he stated that he

was met by the police officials at Kheri Bridge, Banikhet. Police had

been checking the vehicles at the spot, but none was challenged. It

.

took about one hour to complete the proceedings at the spot. To a

suggestion put to him, he was categorical that the accused was

coming from the side of Kheri road and he was in the dark. He also

admitted that the accused could have noticed the police, which was

standing in the light on the road. He admitted that the accused had

only been told by the police of his right to be searched before a

Gazetted Officer or the Magistrate.

11. PW-3 Constable Sanjay Kumar deposed that on

14.12.2009, he was present alongwith other police officials at Kheri

Bridge, Banikhet. A Nakka had been laid and set there. Excise and

Taxation Inspector and one Purshottam were also present there. At

about 9 pm, accused came from the side of Kheri having a black

coloured bag on his shoulder. On seeing the police party accused had

turned back and tried to flee away. He was overpowered and

thereafter his antecedents were known. Option was given to the

accused vide memo Ex.PW1/A. Prior to it, police had given its search

vide memo Ex. PW1/D. The accused had consented to be searched by

the police party. On search of the bag Ex. P2 it was found containing

a polythene envelope Ex. PW-3, in which Charas was there. On its

weighment it was found to be 1 KG. The Charas was then packed

and sealed in a parcel Ext P1 and seizure memo Ex. PW1/C. The

.

specimen of seal was taken on a piece of cloth Ex. PW1/B and seal

after use was handed over to Purshottam and the accused was

arrested. Memo of arrest Ex. PW1/E was prepared and Rukka was

drawn and handed over to him which he took to the police station,

Dalhousie and handed over the same to MHC, who prepared the file

and he took the same to the spot and handed it over to the

investigating officer. In cross-examination, he stated that they had left

Police Post, Banikhet at about 6.35 pm and reached the spot in ten

minutes. They checked about 20-25 vehicles. He admitted that it was

dark at the spot. Volunteered stated that, there was a street light. He

admitted that the accused was coming from the side of Kheri road.

The accused had firstly been apprehended by HC Roop Singh. It took

about three hours to complete the entire formalities at the spot. He

denied that he was not present at the spot and that no Charas had been

recovered from the accused.

12. After close scrutiny of the depositions of the prosecution

witnesses, no loopholes or lacunae are found in the prosecution story,

contrarily, the prosecution story is in complete harmony. Therefore,

the only conclusion of the above discussion is that the learned Trial

Court has rightly convicted the accused for the commission of the

offence punishable under Section 20 of the ND&PS Act and the

.

impugned judgment is an outcome of proper appreciation of law and

evidence, so the same does not need any interference by this Court.

However, before parting with this case, this Court deems it fit and

proper to examine the contention of learned counsel for the accused

that in case this Court finds that the appeal has no merits, than

following mitigating circumstances may be considered for reducing

the sentence, as imposed upon the accused by the learned Trial Court:

(i) the accused has suffered protracted trial;

(ii) no other case, under the NDPS Act or any other

penal law, is either pending or the accused is convicted in any case;

(iii) the accused has already undergone substantial

period of sentence; and

(iv) the accused is the sole bread winner of his family,

13. To support his arguments he has relied upon a judgment

of Hon'ble Supreme Court, rendered in S.K. Sakkar @ Mannan vs.

State of West Bengal, 2021 (1) Him L.R. (SC) 1178, relevant paras

whereof, for the sake of ready reference, are extracted hereunder:

"9. Faced with this, learned Senior Counsel for the appellant relies upon several mitigating circumstances to persuade us to reduce the sentence period. He passionately urges that: (i) the appellant has suffered protracted trial for more than 23 years; (ii) he alone has been convicted while his co-accused are acquitted; (iii) the appellant was not involved in any other case under the NDPS Act or other Penal Laws; (iv) the appellant has already undergone actual sentence of 2 years 4 months and 16 days out of the total

sentence of five years; (v) and that the appellant has not misused the concession of bail granted by this Court on 02.11.2012.

10. We find some merit in the submission noticed above. It may be noted that the appellant committed the crime in the year 1997, i.e.

.

much before the Narcotic Drugs and Psychotropic Substances

(Amendment) Act, 2001 came into force. The punishment for contravention in relation to cannabis plant or any other provision of the NDPS Act, in his case, would thus be regulated by the unamended Section 20 of the NDPS Act, as it stood before the amendment of 2001 and which reads as follows:

"20. Punishment for contravention in relation to cannabis plant and cannabis. Whoever, in contravention of any provision of this Act or any rule or order made or condition of license granted thereunder:-

cultivates any cannabis plant; or

produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or r uses cannabis, shall be punishable,-

where such contravention relates to ganja or the cultivation of cannabis plant, with rigorous imprisonment for a

term which may extend to five years and shall also be liable to find which may extend to fifty thousand rupees;

where such contravention relates to cannabis other than ganja, with rigorous imprisonment for a term which

shall not be less than ten years but which may extend to twenty years and shall also be liable to find which shall not be less than one lakh rupees and which may extend to two lakh rupees:

Provided that the court may, for reasons to eb recorded in the judgment, impose a fine exceeding two lakh rupees."

11. It is manifest from Section 20(i) of NDPS Act (as it stood in 1997), that even though a maximum sentence of five years RI and a fine of upto Rs. 50,000/- was prescribed but there was no minimum mandatory sentence. The Legislature had in its

wisdom left it to the judicious discretion of a court to award the minimum sentence albeit guided by the well known principles on the proportionality of sentence. Taking into consideration the peculiar facts and circumstances of this case, it appears to us that the ends of justice would be adequately met if the appellant's sentence is reduced to the extent of the period he has already undergone. We order accordingly.

12. For the reason(s) stated above, the appeal is allowed in part; the impugned judgments of the Special Judge and the High Court are modified and the sentence of five years RI awarded to the appellant is reduced to the period of sentence already undergone."

14. The judgment (supra), as referred by the learned counsel

for the accused, is partly applicable to the facts of the instant case, but

not fully, as the accused in the judgment (supra) suffered protracted

trial of more than 23 years, whereas the trial of the accused herein

.

concluded in approximately few years, so it cannot be said that the

accused suffered protracted trial. However, the record nowhere

reflects that the accused is involved in any other NDPS case or other

penal laws. Admittedly, the accused is currently in jail and he has

preferred the instant appeal and by now he has already undergone

considerable sentence out of the total sentence of nine years.

Therefore, there are some mitigating circumstances which this Court

need to consider while examining this facet of the case.

15. Admittedly, 992 grams charas was recovered from the

conscious and exclusive possession of the accused and rigorous

imprisonment for a term which may extend to ten years and with fine

which may extend to one lakh rupees is provided under Section 20(B)

of the NDPS Act. A bare reading of Section 20(B) of the NDPS Act

shows that the word "may" has been used purposefully, and the

Legislature has deliberately left it to the judicious discretion of the

Court concerned to award the sentence under this Section, which may

go upto ten years, but not more than ten years. So, considering the

mitigating circumstances that the accused has already undergone

substantial chunk of his imprisonment, there is nothing on record that

the accused is involved in any other NDPS case or any other penal

laws, also the fact that the accused is sole bread winner of his family

.

and also considering the judgment of Hon'ble Supreme Court,

rendered in S.K. Sakkar @ Mannan vs. State of West Bengal, 2021

(1) Him L.R. (SC) 1178, as referred hereinabove, this Court finds that

the ends of justice would only be sub served in case the rigorous

imprisonment for a period of nine years, as imposed by the learned

Trial Court, vide impugned judgment dated 25.4.2017/27.4.2017, is

reduced to five years. Accordingly, the sentence, as imposed by the

learned Trial Court upon the accused/convict, is modified.

16 . The accused has been rightly convicted as the recovery

of charas is proved against the accused person. Now coming to the

second leg of argument that the sentence is required to be reduced.

This Court finds that the appellant was never involved in any other

case earlier or subsequent he was on bail of the similar nature or in

any other case. The view of the learned trial court in rejecting the

contention of learned counsel for the accused for lenient view is

required to be reconsidered in the instant appeal. The appellant's role

cannot be compared with the persons, who are involved in the trade

of narcotics. The appellant is a boy from the remote village who was

apprehended with the narcotics and that is non-commercial quantity

of chars. In these circumstances, considering the fact that the sentence

can be imposed upto 10 years and there is no minimum sentence

.

prescribed, so the appeal is allowed partially by modifying the

sentence and reduced it to 5 years from 9 years. As far as the fine

amount Rs. 20,000/- is concerned, the same remained unaltered

meaning thereby that the appellant is sentenced to undergo 5 years

rigorous imprisonment and pay fine of Rs, 20,000/-.

17. In view of the above, the appeal stands disposed of, so

also pending application(s), if any. Records be sent back forthwith.

                                               (Chander Bhusan Barowalia)



    15 th
            December, 2021                               Judge
            (Guleria)