Himachal Pradesh High Court
Unknown vs State Of H.P on 5 December, 2023
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr. Appeal No. 93 of 2020 along
.
with Cr. Appeal No. 230 of 2020.
Date of Decision : 5th December, 2023.
1. Cr. Appeal No. 93 of 2020
of
Hem Raj .....Appellant.
rt Versus
State of H.P. .....Respondent.
2. Cr. Appeal No. 230 of 2020
Hem Raj .....Appellant.
Versus
State of H.P. .....Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting? No.
For the Appellants: Mr. N.K. Thakur, Sr. Advocate,
with Mr. Divya Raj Singh,
Advocate, for the appellant in Cr.
Appeal No. 93 of 2020.
::: Downloaded on - 06/12/2023 20:33:25 :::CIS
...2...
Ms. Neelam Kaplas, Advocate, for
the appellant in Cr. Appeal No.
.
230 of 2020.
For the Respondent: Mr. I.N. Mehta, Sr. Addl. A.G.
with Mr. Navlesh Verma, Addl.
A.G. and Mr. J.S. Guleria, Dy.
A.G.
of
Satyen Vaidya, Judge (Oral)
rt
Both these appeals are being decided together as
these arise out of the same judgment and order of
sentence.
2. The appellants in both the appeals have been
convicted for offences under Section 20, 25 and 29 of the
Narcotic Drugs and Psychotropic Substances Act (for short
"NDPS Act"), vide judgment dated 07.11.2019, passed by
learned Special Judge, Chamba Division, Chamba (H.P.). in
Sessions Trial No. 8 of 2015. The appellant have been
sentenced as under
Name of Convict Offence of which Sentence Default Sentence
convicted
Kulwant Singh Section 20 (b)(ii) RI for 12 years RI for one year
(C) NDPS Act and fine Rs.
1Lakh twenty
...3...
thousand
Kulwant Singh Sections 25 and RI for 12 years RI for one years
.
29 NDPS Act and fine Rs.
1Lakh twenty
thousand
Hem Raj Section 20 (b)(ii) RI for 12 years RI for one year
(C) NDPS Act and fine Rs.
1Lakh twenty
thousand
Hem Raj Sections 25 and RI for 12 years RI for one years
29 NDPS Act and fine Rs.
of
1Lakh twenty
thousand
Both the sentences have been ordered to run concurrently.
3.
rt
The case as set up by the prosecution was that
on 22.12.2014, a police party consisting of H.C. Virender
Singh (PW11), C. Yograj (PW2), HHC Mohammad Aslam
(PW3), C. Sanjay Kumar (PW5), C. Sunil Kumar and C.
Sanjay Kumar No. 145 had laid 'Nakka' at Tunnuhatti
Police Barrier in District Chamba, H.P.
4. At about 3.50 AM, one 'Esteem' car bearing
registration No. PB65A9377 reached the Nakka from the
side of Banikhet. The car was stopped for checking.
Appellant Kulwant was on driving seat and appellant Hem
Raj was found occupying the front passenger seat. Strong
smell of Cannabis appeared on rolling down of the window
...4...
shutters of the car. Police got suspicious and an option
.
was sought from the appellants in respect of their search
to be carried either by the police or in the presence of a
Gazetted Officer or a Magistrate. The appellants opted to
be searched in presence of a Gazetted Officer. Dy. S.P.
of
Santosh Sharma (PW7) was informed, who reached the
rt
spot and authorised H.C. Virender Singh (PW7) to carry
the search. Whereas nothing was recovered from the
persons of the appellants, a carry bag was found placed
under legs of the appellant Hem Raj. On checking of the
said carry bag, 4 Kg. 100 grams of charas (cannabis) was
recovered.
5. The police seized the recovered contraband vide
seizure memo Ex.PW2/G. Relevant columns of the NCB
form, Ex.PW4/E were filled. Rukka Ex.PW8/A was
prepared and sent to Police Station for registration of FIR.
Consequently, FIR Ex.PW9/A was recorded.
...5...
6. PW12 SHO Kripal Singh reached the spot and
.
took over the investigation. He prepared the site plan,
Ex.PW12/A. The sealed parcel containing contraband was
resealed vide memo Ex.PW1/D. The appellants were
formally arrested vide arrest memo Ex.PW1/C. The
of
contraband along with related documents and articles was
rt
deposited in the 'Malkhana' of the police station.
7. The seized substance was sent to SFSL Junga,
which reported the same to be the sample of charas.
8. On Completion of investigation, both the
appellants were charged for offences under Sections 20, 25
and 29 of the NDPS Act in Sessions Trial No. 8 of 2015.
Prosecution examined total 13 witnesses besides proving
on record various documents. The appellants were
separately examined under Section 313 of the Cr.P.C. One
witness H.C. Raj Pal (DW1) was examined in defence.
9. Learned Special Judge, on the basis of material
on record, found all the charges proved against the
...6...
appellants. Accordingly, the appellants have been
.
convicted and sentenced as noted above.
10. We have heard learned counsel for the parties
and have also gone through the entire record carefully.
11. Learned counsel for the appellants though
of
termed the impugned judgment as wrong, illegal but they
rt
could not point out any such illegality or infirmity therein,
which could be sufficient to pursuade this Court to take a
different view. However, it has been contended that the
sentence imposed upon the appellants is excessive keeping
in view the fact that none of the appellants had any past
criminal history.
12. Despite there being no serious challenge to the
impugned judgment made during the hearing of the case
on behalf of the appellants, in order to satisfy ourselves as
to the legality and propriety of findings and conclusions
drawn by learned Special Judge, we have gone through the
...7...
statements of the prosecution witnesses and the
.
documents on record.
13. PW11 H.C. Virender Singh, PW2 Constable
Yograj, PW3 HHC Mohammad Aslam and PW5 Constable
Sanjay Kumar have been examined as spot witnesses.
of
Their version before the Court has been in unison. As per
rt
these witnesses, police party including themselves along
with constables Sunil Kumar and Sanjay Kumar No. 145,
had left Chamba at 10.15 P.M. on 21.12.2014 in official
'Nakabandi'
vehicle No. HP481220 for and traffic
checking towards the areas of Balu, Parel, Goli, Banikhet
and Tunnuhatti etc. Recording of DDR No.6, Ex.PW2/J in
this regard has been proved on record.
14. PW2, PW3, PW5 and PW11 have also been
consistent in their version regarding 'Nakka' having been
laid by them at 'Tunnuhatti' barrier. There has been
harmony in their depositions with regard to the stopping of
car No. PB65A9377 at about 3.50 A.M. on 22.12.2014
...8...
and the presence of both the appellants therein. The
.
option afforded to the appellants for being checked either
by the police party or in the presence of
Magistrate/Gazetted Officer also stands proved through
the statements of these witnesses as also the consent
of
memos Ex.PW2/A and Ex.PW2/B. The corroboration to
rt
this part of the prosecution story has been rendered by Dy.
S.P. Santosh Sharma (PW7) by making a trustworthy
deposition before the Court.
15. The recovery of contraband and seizure thereof
has also been proved through the statements of all the
above noted witnesses. Seizure memo Ex.PW2/G has also
been proved on record. The defence could not extract
anything material from the cross examination of the spot
witnesses.
16. There is nothing on record, from which, it may
be inferred that the seized contraband was tampered with
at any stage. PW12 SHO Kripal Singh had deposed that
...9...
he had resealed the parcel on the spot itself by placing five
.
seals with impression "K" and had prepared the memo
Ex.PW1/D in this behalf. SFSL report, Ex. Px reveals that
the entire bulk of seized contraband was received in the
laboratory on 24.12.20214 with five seals having seal
of
impression "N" and five seals with seal impression "K"
rt
intact. On comparison of such impression with specimens
of seal impressions, no discrepancy was found. The
prosecution also examined witness HHC Amrik Singh (PW
6), who had taken the contraband from Police Station to
SFSL Junga on 23.12.20214 vide R.C. No.190/2014,
Ex.PW4/B. From the statement of this witness, there is
nothing to suggest that the case property was tampered
with at any stage. MHC of Police Station Chowari has been
examined as PW4. He has also proved the safe custody of
the contraband in the Malkhana of Police Station and the
proceedings regarding transit of seized contraband to and
from SFSL Junga.
...10...
17. The appellants had nowhere disputed SFSL
.
report, Ex. Px, according to which the sample of
contraband examined in the laboratory was found to be
that of charas (cannabis).
18. We have not found any inconsistency or
of
contradiction in the statement of prosecution witnesses,
rt
which could render the prosecution case vulnerable.
Merely because the independent witnesses were not
associated will not render the testimony of police witnesses
unreliable. Reference can be made to the observations
made by the Hon'ble Supreme Court in Sathyan vs. State
of Kerala, 2023 INSC 703, wherein, it has been held as
under:
"22. Conviction being based solely on the evidence of
police officials is no longer an issue on which the jury is
out. In other words, the law is well settled that if the
evidence of such a police officer is found to be reliable,
trustworthy then basing the conviction thereupon,
cannot be questioned and the same shall stand on firm
ground........."
...11...
19. By applying the aforesaid exposition of law to
.
the facts of the case, we are of the considered view that the
defence has not been able to extract any material from the
statements of the prosecution witnesses, which could cast
any doubt on the prosecution story and thus, the non
of
association of independent witnesses will not affect the
rt
conviction of the appellants in any manner. Moreover, the
spot witnesses have stated that an attempt was made to
associate the independent witnesses by summoning the
persons deployed at barriers, but they had refused to
associate on account of exigency of their duties and
paucity of staff. Needless to say, the time when the
appellants were apprehended, was such, when the
availability of independent witnesses would ordinarily not
be there.
20. In view of the above discussion, we find that the
findings and conclusion drawn by the learned Special
Judge need no interference.
...12...
21. As regards, substantive sentence imposed upon
.
the appellants, it can be seen that under Section 20 (ii) (c)
the prescribed punishment is rigorous imprisonment for a
term which shall not be less than ten years but may extend
to 20 years. The imposition of fine has also been made
of
mandatory which as per the prescription of the aforesaid
rt
provisions shall not be less than Rs. One Lakh but which
may extend to two lakh rupees. The Court has further
been vested with the power to impose fine exceeding Rs.
two lakh by recording reasons in that behalf.
22. While dealing with a similar proposition, a
Division Bench of this Court (in which one of us Justice
Tarlok Singh Chauhan, J. was the member) rendered the
judgment dated 30.08.2023 in Cr. Appeal No. 204 of
2017, titled as Dila Ram vs. State of H.P. after taking
notice of the exposition of law, as reproduced hereinafter,
and reduced the substantive sentence to rigorous
...13...
imprisonment of 10 years from rigorous imprisonment of
.
12 years as imposed by the learned Special Judge:
"10 In Balwinder Singh's case (supra) (2005) 4 SCC
146, the appellant therein was found to be in conscious
possession of 175 kg of heroin and 39 kg of opium of foreign
origin and was sentenced to imprisonment for a period of 14
of
years, however the Hon'ble Supreme Court reduced the
sentence from 14 years to 10 years by recording following
reasons:
rt
4. In this case, the appellant Tarlochan Singh was the
driver of the vehicle DIL 3372. He was also in custody of
vehicle PJA 8677. His statement was recorded under
Section 108 of the Customs Act. From his possession the
articles of opium and heroin were recovered and in his
statement he admitted that he knew about the presence of
these drugs in the vehicleand about the transport of the:
drugs illegally from Ludhiana to Bombay. It is evident from
the statement made by him that he committed the offences
punishable under Sections 18, 21, 22, 23, 25, 29 and 30
of the NDPS Act. We find no reason to interfere with the
conviction and sentence entered against the appellant
Tarlochan Singh and the criminal appeal stands
dismissed. We are told that the appellant was convicted of
this offence for the first time. The sentence imposed on him
was imprisonment for a period of 14 years. Having regard
to the facts and circumstances of this case, we reduce
the sentence from 14 years to 10 years each for the
offences under the NPDS Act and for the offence under
Section 120B IPC. The sentences shall run concurrently.
...14...
The direction to pay fine is maintained, but the default
.
sentences shall also run concurrently.
11 In Shahejadkhan Mahebubkhan Pathan's case (supra)
(2013) 1 SCC 570, the Hon'ble Supreme Court, in a case
relating to recovery of 500 gm brown sugar (narcotic
substance) modified the default sentence by taking into
consideration the fact that the appellant therein was very poor
of
and had to maintain his family and was first offender. It
was observed as under:
12) It is clear and reiterated that the term of imprisonment
rt
in default of payment of fine is not a sentence. To put it
clear, it is a penalty which a person incurs on account of
nonpayment of fine. On the other hand, if sentence is
imposed, undoubtedly, an offender must undergo unless it
is modified or varied in part or whole in the judicial
proceedings. However, the imprisonment ordered in
default of payment of fine stands on a different footing.
When such default sentence is imposed, a person is
required to undergo imprisonment either because he is
unable to pay the amount of fine or refuses to pay such
amount. Accordingly, he can always avoid to undergo
imprisonment in default of payment of fine by paying such
an amount. In such circumstance, we are of the view that
it is the duty of the Court to keep in view the nature of
offence, circumstances in which it was committed, the
position of the offender and other relevant considerations
such as pecuniary circumstances of the accused person as
to character and magnitude of the offence before ordering
the offender to suffer imprisonment in default of payment
of fine. The provisions of Sections 63 to 70 of IPC make it
clear that an amount of fine should not be harsh or
...15...
excessive. We also reiterate that where a substantial term
.
of imprisonment is inflicted, an excessive fine should not
be imposed except in exceptional cases.
(2) The imprisonment awarded under this section may be
in addition to a substantive sentence of imprisonment for
the maximum term awardable by the Magistrate under
Section 29." It is clear that clause (b) of subsection (1) of
of
Section 30 of the Code authorizes the Court to award
imprisonment in default of fine up to 1/4th of the term of
imprisonment which the Court is competent to inflict as
punishment for the offence. However, considering the
rt
circumstances placed before us on behalf of the
appellantsaccused, viz., they are very poor and have to
maintain their family, it was their first offence and if they
fail to pay the amount of fine as per the order of the
Additional Sessions Judge, they have to remain in jail for
a period of 3 years in addition to the period of substantive
sentence because of their inability to pay the fine, we are
of the view that serious prejudice will be caused not only
to them but also to their family members who are innocent.
We are, therefore, of the view that ends of justice would be
met if we order that in default of payment of fine of Rs.1.5
lakhs, the appellants shall undergo RI for 6 months
instead of 3 years as ordered by the Additional Sessions
Judge and confirmed by the High Court.
12 In Yasihey Yobin's case (supra)(2014) 13 SCC 344, the
Hon'ble Supreme Court considered the fact that accused No.1
therein was old and suffering from ailment and thus, the
sentence was modified as under:
"16. Shri Altaf Ahmad, would submit that the Trial Court
in course of its order has observed that Accused No. 1 is
...16...
old and is suffering from several ailments and therefore
.
requests for modification of the sentence ordered by the
Trial Court and so confirmed by the High Court. We see
merit in the submission made by the learned senior
counsel. Keeping this aspect in view, we modify the
sentence of Accused No.1 from 13 years to 10 years.
However, insofar as the conviction of Accused No.2 is
of
concerned, we are not inclined to grant any remission and
accordingly confirm the judgment and order passed by the
Trial Court and so confirmed by the High Court and
maintain the fine imposed on him. We further direct that
rt
the appellants will surrender after six weeks to serve out
the remaining period of sentence. Their bail bonds stands
cancelled."
13. In Baldev Singh's case (supra) (2015)2 SCALE 308,
the appellant therein was found to be in possession of 13
quintals and 20 kg of poppy husk and the Hon'ble Supreme
Court reduced the sentence from 12 years to 10 years by
recording following reasons:
15. To assail the prosecution case, it was contended that
Ram Singh PW1's testimony cannot be relied upon as PW
1 has stated that he remained busy in the investigation in
the present case for 78 hours but the fact that Ram Singh
has been associated in the investigation of another FIR
No.235 dated 17.09.1990 relating to Police Station Sadar
Dabwali at 5.30 a.m. in which one Bhoop Singh was
arrested while carrying one kilogram and hundred grams
opium, which according to the appellant, renders the
presence of Ram SinghASI in the instant case highly
doubtful. The learned Sessions Judge accepted the above
submission of the appellant to hold that evidence of Ram
...17...
SinghASI does not inspire confidence. As observed by the
.
High Court, the learned Sessions Judge overlooked that
there is no evidence as to the distance between the places
of recovery in both the cases. As observed by the High
Court, it has come on record that in both the FIRs the place
of occurrence has been stated as "in the area of Village
Kingre, at a distance of 18 K.M. towards the East,
of
Deh.No.33". It appears from the above entry in the FIR,
that the place of occurrence was the same for both the
FIRs recorded on that night. The case relating to Bhoop
Singh in FIR No.235 resulted in acquittal. Referring to the
rt
acquittal of Bhoop Singh, High Court observed that the
same would warrant an inference that what is
incorporated in FIR No.234 is incorrect and that defence
has not been able to make any dent in the testimony of
Ram Singh ASI to discard his evidence as untrustworthy.
We find no reason to take a different view.
14. In Usman Shamshudeen Shekh's case (supra)
2016(1) Sim. LC 283, a learned Division Bench of this Court
by placing reliance on the judgment rendered by the Hon'ble
Supreme Court in Shahejadkhan Mahebubkhan Pathan vs.
State of Gujarat, (2013) 1 SCC 570, in a case relating to
recovery of 1.9 kg charas reduced the sentence from 12 years
to 10 years. It shall be apt to reproduce relevant observations
as contained in paras 42 to 45, which read as under:
42. However we are in agreement with learned counsel
for the accused that the sentence so imposed by the
Court below is harsh and on the higher side. Contraband
substance, so recovered was of commercial quantity
weighing 1.9 kgs. The accused cannot be said to be a
man of means. It is his first offence. We notice that both
...18...
before the trial Court as also this Court, he stands
.
represented by a Legal Aid Counsel, who undoubtedly
have put in their best efforts.
43. The Hon'ble Supreme Court of India in Shahejadkhan
Mahebubkhan Pathan v. State of Gujarat, (2013) 1 SCC
570, has held as under:
"12. It is clear and reiterated that the term of
of
imprisonment in default of payment of fine is not a
sentence. To put it clear, it is a penalty which a person
incurs on account of nonpayment of fine. On the other
hand, if sentence is imposed, undoubtedly, an offender
rt
must undergo unless it is modified or varied in part or
whole in the judicial proceedings. However, the
imprisonment ordered in default of payment of fine
stands on a different footing. When such default sentence
is imposed, a person is required to undergo
imprisonment either because he is unable to pay the
amount of fine or refuses to pay such amount.
Accordingly, he can always avoid to undergo
imprisonment in default of payment of fine by paying
such an amount. In such circumstance, we are of the
view that it is the duty of the Court to keep in view the
nature of offence, circumstances in which it was
committed, the position of the offender and other relevant
considerations such as pecuniary circumstances of the
accused person as to character and magnitude of the
offence before ordering the offender to suffer
imprisonment in default of payment of fine. The
provisions of Sections 63 to 70 of IPC make it clear that
an amount of fine should not be harsh or excessive."
...19...
Similar view was taken by the apex Court in Shanti Lal v.
.
State of H.P., 2007 (11) SCC 243.
44. It has not come on record that accused is a kingpin,
regularly indulging in the trade of manufacture, supply or
sale of narcotic substance.
45. While taking note of overall attending circumstances,
we reduce the sentence of rigorous imprisonment, so
of
imposed by the trial Court, from 12 years to ten years,
being the minimum sentence so prescribed under the Act
for an offence of this nature and also reduce the amount
of fine from Rs.15,00,000/(fifteen lacs), so imposed by
rt
the trial Court, to `1,00,000/ (one lac). We direct that in
the event of default in the payment of fine, the accused
shall further undergo rigorous imprisonment for a period
of one year.
15. In Pradeep Bachhar's case (2018) 13 SCC 600, the
Hon'ble Supreme Court reduced the substantial sentence of
the appellant therein from 12 years to 10 years, which earlier
had been reduced by the High Court from 15 to 12 years. It
shall be apt to reproduce relevant observations as contained
in paras 2 to 4 of the judgment, which read as under:
2. The High Court reduced the sentence from 15 years to
12 years. The fine of Rs. 1,50,000/ was retained, but the
default sentence was reduced to two years. When the
matter came up before this Court, on 09.10.2017, notice
was issued on the quantum of sentence.
3. A similar situation came up for consideration before this
Court in Shahejadkhan Mahebubkhan Pathan Vs. State of
Gujarat, reported in (2013) 1 SCC 570, whereby having
regard to the financial and other social conditions of the
convicted person, this Court reduced the substantial
...20...
sentence to 10 years and the default sentence to six
.
months. The relevant considerations are available at
paragraphs 15 and 16 of the Judgment, which read as
follows :
"15. It is clear that clause (b) of subsection 1 of Section 30
of the Code authorizes the court to award imprisonment in
default of fine up to onefourth of the term of imprisonment
of
which the court is competent to inflict as punishment for
the offence. However, considering the circumstances
placed before us on behalf of the appellantaccused viz.
they are very poor and have to maintain their family, it
rt
was their first offence and if they fail to pay the amount of
fine as per the order of the Additional Sessions Judge,
they have to remain in jail for a period of 3 years in
addition to the period of substantive sentence because of
their inability to pay the fine, we are of the view that
serious prejudice will be caused not only to them but also
to their family members who are innocent. We are,
therefore, of the view that ends of justice would be met if
we order that in default of payment of fine of Rs. 1.5
lakhs, the appellants shall undergo RI for 6 months
instead of 3 years as ordered by the Additional Sessions
Judge and confirmed by the High Court.
16. For the reasons stated above, both the appeals are
partly allowed. The conviction recorded is confirmed and
sentence imposed upon the appellants to undergo RI for 15
years is modified to 10 years. The order of payment of fine
of Rs. 1.5 lakhs each is also upheld but the order that in
default of payment of fine, the appellants shall undergo RI
for 3 years is reduced to RI for 6 months. Since the
appellants have already served nearly 12 years in jail, we
...21...
are of the view that as per the modified period of sentence
.
in respect of default in payment of fine, there is no need
for them to continue in prison. The appellants shall be set
at liberty forthwith unless they are required in any other
offence. It is further made clear that for any reasons, if the
appellants have not completed the modified period of
sentence, they will be released after the period indicated
of
hereinabove is over."
4. Having heard the learned senior counsel appearing for
the appellant and the learned counsel appearing for the
State, on facts, we do not find any reason to take a
rt
different view. Accordingly, the appeal is allowed. The
substantial sentence of the appellant is reduced to 10
years and the sentence in default on payment of fine is
reduced to six months.
16 Thus, it would be noticed from the aforesaid
judgments that even though in cases involving much larger
quantity of narcotic substance, the Hon'ble Supreme Court
exercised its discretion while modifying the sentence.
17 However, this court cannot be oblivious to the
judgment relied upon by the respondentState in Gurdev
Singh vs. State of Punjab (2021) 6 SCC 558, wherein the
Hon'ble Supreme Court in paras 15 and 16 observed as
under:
15. At this stage, the statement of objects and reasons for
enactment of NDPS Act are required to be referred to.
Before the NDPS Act 1965 was enacted, the statutory
control over narcotic drugs was exercised in India through
number of Central and State enactments viz. -- The
Opium Act, 1857, (b) the Opium Act, 1878 and (c) The
Dangerous Drugs Act, 1930. However, with the passage
...22...
of time and developments in the field of illicit drug traffic
.
and drug abuse at national and international level it was
noticed and found that
(i) The scheme of penalties under the aforesaid ACTS was
not sufficiently deterrent to meet the challenge of well
organized gangs of smugglers;
(ii) The country has for the last few years been
of
increasingly facing the problem of transit traffic of drugs
coming mainly from the neighboring countries and
destined mainly to Western countries;
(iii) During recent years new drugs of addiction which
rt
have come to be known as psychotropic substances have
appeared on the scene and posed serious problems to
national governments.
Therefore with a view to overcome the aforestated
deficiencies the NDPS Act, 1985 came to be enacted. That
thereafter to check the menace of dangerous drugs
flooding the market, Section 37 of the Act came to be
amended and it has been provided that the accused of an
offence under the Act shall not be released on bail during
trial unless the mandatory conditions provided in Section
37 are satisfied.
16. While considering the submission on behalf of the
accused on mitigating and aggravating circumstances and
the request to take lenient view and not to impose the
punishment higher than the minimum sentence provided
under the Act it should be borne in mind that in a murder
case, the accused commits murder of one or two persons,
while those persons who are dealing in narcotic drugs are
instruments in causing death or in inflicting death blow to
number of innocent young victims who are vulnerable; it
...23...
cause deleterious effects and deadly impact on the
.
society; they are hazard to the society. Organized
activities of the underworld and the clandestine
smuggling of narcotic drugs and psychotropic substances
into this country and illegal trafficking in such drugs and
substances shall lay to drug addiction among a sizeable
section of the public, particularly the adolescents and
of
students of both sexes and the menace has assumed
serious and alarming proportions in the recent years.
Therefore, it has a deadly impact on the society as a
whole.
rt Therefore, while awarding the
sentence/punishment in case of NDPS Act, the interest of
the society as a whole is also required to be taken in
consideration. Therefore, while striking balance between
the mitigating and aggravating circumstances, public
interest, impact on the society as a whole will always be
tilt in favour of the suitable higher punishment. Therefore,
merely because the accused is a poor man and/or a
carrier and/or is a sole bread earner cannot be such
mitigating circumstances in favour of the accused while
awarding the sentence/punishment in the case of NDPS
Act. Even otherwise, in the present case, the Special
Court, as observed hereinabove has taken into
consideration the submission on behalf of the accused
that he is a poor person; that he is sole bread earner, that
it is his first offence, while not imposing the maximum
punishment of 20 years R.I and imposing the punishment
of 15 years R.I. only.
18. Having gone through the entire law on the subject, it
needs to be noticed that in matters of sentence, the Court has
been vested with vast discretion and for its proper exercise,
...24...
mitigating and aggravating circumstances would normally be
.
required to be kept in mind by the court."
23. In the instant case also, there is no allegation
against the appellants that they had any past criminal
history. It has been submitted on behalf of the appellants
of
that they have already undergone about 9 years of
substantive sentence
rt each and there has been no
complaint whatsoever with respect to their jail conduct and
behaviour. This factual aspect has not been disputed on
behalf of the State. Taking into consideration all the
cumulative facts and circumstances of the case, we are of
the considered view that the interest of justice will be met
by reducing the substantive sentence of the appellants
from 12 years of rigorous imprisonment to 10 years of
rigorous imprisonment for offences under Section 20 and
also under Sections 25 and 29 of the NDPS Act. Rest of
the sentence order shall remain unaffected. Ordered
accordingly.
...25...
24. With the aforesaid modification of the sentence
.
part of the judgment of the learned Special Judge, the
appeal is partly allowed and disposed of as such as also
the pending applications, if any.
of
(Tarlok Singh Chauhan)
Judge
rt (Satyen Vaidya)
5th
December, 2023. Judge.
(jai)
