Gopi Ram vs State Of Punjab
2022 Latest Caselaw 17389 P&H

CRA-S-3226-SB of 2012 (O&M)                                            -1-



IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

                          CRA-S-3226-SB of 2012 (O&M)
                          Date of decision : December 21, 2022


Gopi Ram                                             ....Appellant
                          versus

State of Punjab                                      ....Respondent


Coram:      Hon'ble Mr. Justice Kuldeep Tiwari


Present :   Mr. Ravi Kamal Gupta, Advocate for the appellant
            Mr. Maninder Singh, DAG, Punjab


Kuldeep Tiwari, J.

The instant appeal has been directed against the

judgment of conviction and order of sentence dated 4.7.2012

passed by the learned Special Court, Sri Muktsar Sahib, in case FIR

No. 405 dated 6.11.2005, under Section 18 of the Narcotic Drugs

and Psychotropic Substances Act, 1985 (hereinafter referred to as

'the Act'), registered at Police Station City Lambi, District Sri

Muktsar Sahib, whereby, the appellant was held guilty for the

commission of offence punishable under Section 18 of the Act and

sentenced to undergo rigorous imprisonment for a period of ten

years and to pay a fine of Rs 1 lakh and in case of default of

payment of fine, the appellant was further ordered to undergo RI for

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two years.

FACTUAL MATRIX

The prosecution case unfolds on the statement of one SI

Shinderpal Singh, Investigating Officer (PW5) wherein, it has been

stated that he was posted at Police Station, City Malout as

Investigating Officer and on that day, he along with other police

officials, on a private jeep, in connection with patrol duty and

checking of suspected persons, were present at bus stand of Lambi,

where Paramjit Singh son of Balbir Singh resident of Kandu Khera

met and he was joined in the police party. When they reached near

the bridge of twin canals in the area of village Panjawa, one person

was found standing near the hand pump and he was eating some

black substance from a glazed paper held by him in his hand. On

noticing the police, the said person threw the polythene Bag on the

ground. On suspicion, Investigating Officer (PW5) stopped the

jeep and apprehended the accused. The mouth of the polythene

Bag was already open and opium was clearly visible in it. He

inquired the whereabouts of the accused who was identified by the

witness. Out of the recovered opium, 10 grams was separated as

sample and converted into a parcel. On weighment, the remaining

opium came to be of 2 kilograms 490 grams and it was converted

into another parcel. Both the parcels were sealed by him with his

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seal bearing impression 'SS'. Specimen seal chit Ex. P1 was

prepared and the seal after use was handed over to HC Gurdeep

Singh and then he took the case property into possession vide

separate recovery memo Ex. P8, attested by HC Gurdeep Singh, HC

Balraj Singh and independent witness Paramjit Singh. On personal

search, a sum of Rs 80/- were recovered from the accused and the

same were taken into possession vide recovery memo Ex. P10.

Ruqa Ex. P11 was sent to the Police Station through PHG Kulwinder

Singh and on the basis of which formal FIR Ex. P12 was registered

by ASI Vinod Kumar and the witness identified his signatures on

endorsement Ex. P12/1 over it. The accused was arrested after

disclosing grounds of arrest vide memo Ex. P9. Rough site plan Ex.

P13 was prepared by the Investigating Officer at the spot. All the

memos were attested by the same set of witnesses. Statements of

the witnesses were recorded. On returning to the Police Station,

the Investigating Officer produced the accused and the case

property before SHO Atma Singh, PW1, along with money recovered

from personal search. PW1 checked the case property and verified

the investigation and then he sealed it with his seal 'AS' and took the

same into his possession vide separate memo Ex. P2.

After completion of investigation, the Station House

Officer filed final report under Section 173 Cr.P.C. against the

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present appellant. After complying the requirements of Section 207

Cr.P.C., the learned trial court framed charge under Section 18 of

the Act against the appellant-accused. The appellant did not plead

guilty and claimed trial.

In order to prove its case, the prosecution examined as

many as five witnesses. The statement of appellant-accused was

recorded under Section 313 Cr.P.C. He denied all the incriminating

evidence put to him and further claimed that he has been falsely

implicated. Nothing was recovered from him. In fact he was on a

Bus going from Mandi Dabwali to Malout to meet his friend Amarjit

Singh son of Baljit Singh resident of Village Adhnia. The moment

he deboarded the bus, the police picked him up and planted the

present contraband upon him. He also examined three witnesses in

defence. The learned trial court, after considering the oral as well

as documentary evidence adduced by the prosecution and defence,

held the appellant guilty for the commission of offence punishable

under Section 18 of the Act. The trial court considering the

recovered contraband, that is 2.5 kgs of opium, as commercial

quantity, sentenced the appellant to undergo RI for ten years.

Submissions by learned counsel for the parties

At the very outset, learned counsel for the appellant has

submitted that the trial court has recorded a wrong finding to the

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extent that the recovered quantity falls within the ambit of

commercial quantity. He has stated that the alleged recovery is only

2.5 kgs which is less than commercial quantity. He relied upon

Section 2(viia) of the Act which defines "commercial quantity". He

further relied upon entry No. 92 of the Gazette Notification

specifying small quantity and commercial quantity with regard to

opium.

Section 2 (viia) of the Act read as under:-

"2(viia) "commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette."

In the official Gazette notification, the quantity specified

for 'small quantity', in case of opium, is 25 grams and for

'commercial quantity' is 2.5 kgs. On joint reading of Section 2(viia)

of the Act with Entry No. 92 of the Gazette notification, to bring a

case within the ambit of commercial quantity, the recovered

contraband shall be more than 2.5 kgs. Undisputedly, in the present

case, the recovered quantity is 2.5 kgs and therefore, it does not fall

under the category of 'commercial quantity'.

The learned State counsel did not dispute the factual

submission made by counsel for the appellant with regard to the

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recovered contraband. Therefore, in view of the above, the finding

of learned trial court to the extent that the recovered opium falls

within the ambit of 'commercial quantity' is erroneous and therefore,

the same is not sustainable. Therefore, the recovered contraband

falls in between small quantity and commercial quantity, known as

'non commercial quantity'. Section 18 (c) of the Act prescribes the

punishment for 'non commercial' quantity and provides that any

person who in contravention of any provision of this Act or any rule

or order made or condition of licence granted thereunder, cultivates

the opium poppy or produces, manufactures, possesses, sells,

purchases, transports, imports inter-State, exports inter-State or

uses opium shall be punishable, with rigorous imprisonment which

may extend to ten years and with fine which may extend to one lac

rupees.

Section 18 of the Act reads as under:-

"18. Punishment for contravention in relation to opium poppy and opium.-- Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, cultivates the opium poppy or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses opium shall be punishable,--

(a) where the contravention involves small quantity,

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with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;

(b) where the contravention involves commercial quantity, 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 fine which shall not be less than one lakh rupees which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees;

(c) in any other case, with rigorous imprisonment which may extend to ten years and with fine which may extend to one lakh rupees."

The learned counsel for the appellant restricted his

arguments to the extent of sentence awarded by the learned trial

court i.e. rigorous imprisonment of ten years and fine of Rs one lakh.

He submitted that since the recovered contraband does not fall

within the ambit of commercial quantity, therefore, the sentence is on

very higher side. Therefore, he prayed for reduction of sentence to

the period already undergone by the appellant. To buttress his

arguments, he relied upon judgment passed by the Coordinate

Bench of this Court in Lakha Singh vs State of Haryana, Criminal

Appeal No. 137-SB of 2003, decided on 24.1.2013 wherein this

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Court reduced the sentence from 10 years to 4 years 5 days i.e. the

period already undergone and also reduced the fine to Rs 20,000/-

from Rs One lac awarded by the learned trial court.

I have considered the submissions made by the learned

counsel for the appellant. So far as the observation of the trial court

is concerned, declaring that the recovered contraband from the

appellant is of 'commercial quantity', the same is erroneous and

accordingly set aside in light of the observation made above. With

regard to the submission on quantum of sentence, this Court

considered all the aggravated and mitigating circumstances. The

present case was registered in the year 2005. The appellant-

accused faced agony of trial for almost about 17 years and at the

time of arrest he was 55 years of age. Now he is more than 72 years

of age. The custody certificate produced on record by the learned

State counsel reveals that he has undergone actual sentence of 3

years, 7 months and 13 days and the custody certificate further

shows that he is not involved in any other case. This Court

examined the entire record and also the custody certificate. The

sentence of the appellant was suspended by this Court way back on

28.4.2016. Thereafter, the appellant has not misused the

concession of bail granted by this Court. It seems that the appellant

has joined the mainstream of the society. No useful purpose will be

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served either for the society or the appellant by sending him to

prison again. Therefore, the sentence of the appellant can be

reduced to the period already undergone. For this, this Court

placed reliance on judgment of the Hon'ble Supreme Court in Sk.

Sakkar @ Mannan vs State of West Bengal, 2021(4) SCC 483

wherein the Supreme Court, after considering the mitigating

circumstances, reduced the sentence to the period already

undergone. The relevant observations reads as under:

"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."

In the same way, the Hon'ble Supreme Court in case

Issak Nabab Shah vs The State of Maharashtra, Criminal Appeal

No. 828 of 2020 decided on 3.12.2020, reduced the sentence from

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10 years to 6 years in case of non-commercial quantity, (quantity

between small and commercial quantity) and observed as under:-

"5. Having heard the learned Advocates appearing for the respective parties and in the facts and circumstances of the case, more particularly when the quantity/Ganja recovered from the appellant was 6.300 kilogram, which is between small quantity and commercial quantity and considering the fact that the maximum punishment for such offence is 10 years rigorous imprisonment, out of which the appellant has already undergone six years rigorous imprisonment, we allow the present appeal in part and modify the impugned judgment and order passed by the learned trial Court, confirmed by the High Court, to the extent of imposing the sentence of six years rigorous imprisonment in place of ten years rigorous imprisonment as imposed by the learned trial Court and confirmed by the High Court. Rest of the judgment and order passed by the learned trial Court, confirmed by the High Court, is hereby confirmed."

In view of the legal proposition settled by the Hon'ble

Supreme Court, considering the age of the accused, aggravating

and mitigating circumstances, while maintaining balance between

deterrence against crime vis-a-vis reformative approach of

punishment, this Court deem it appropriate to reduce the period of

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sentence of the appellant to the period already undergone i.e. 3

years, 7 months and 13 days

Conclusion

In view of the above, the present appeal is partly allowed.

The impugned judgment of conviction dated 4.7.2012 is modified to

the extent that the recovered contraband falls within the ambit of

'non commercial' quantity. However, conviction of the appellant

under Section 18 of the Act is maintained. Accordingly, the

sentence imposed upon the appellant is reduced to the period

already undergone. The sentence of fine is also reduced to Rs

10,000/- from Rs one lakh, as imposed by the learned trial court. In

default of payment of fine, the appellant accused shall undergo RI

for a period of six months.

                                                    ( Kuldeep Tiwari )
December 21, 2022                                         Judge
   'tiwana'



              Whether speaking/reasoned ?              Yes/No
              Whether Reportable ?                     Yes/No




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