Sandeep Kumar vs State Of Punjab
2024 Latest Caselaw 10124 P&H

Punjab-Haryana High Court

Sandeep Kumar vs State Of Punjab on 10 May, 2024

Author: Kirti Singh

Bench: Kirti Singh

                                 Neutral Citation No:=2024:PHHC:065901
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       IN THE HIGH COURT OF PUNJAB AND HARYANA
                    AT CHANDIGARH
695

                                         CRA-S-1980-SB-2006 (O&M)
                                         Date of Decision: 10.05.2024
Sandeep Kumar
                                                                 ...Appellant
                                 Versus
State of Punjab
                                                                ...Respondent
CORAM: HON'BLE MS. JUSTICE KIRTI SINGH

Present:-.   Mr. Aneeshh Chopra, Advocate (Amicus Curiae)
             for the appellant.

             Mr. Aftab Singh Khara, Sr. DAG, Punjab.
                  *****

KIRTI SINGH, J.

Instant appeal has been directed against the judgment of

conviction and order of sentence dated 04.10.2006 passed by Special

Judge (under The Narcotic Drugs and Psychotropic Substances Act, 1985)

(hereinafter referred to as 'NDPS Act') Amritsar, whereby the appellant-

accused has been held guilty for commission of offence punishable under

Section 21 of NDPS Act and sentenced to undergo rigorous imprisonment

for a period of 04 months and also sentenced to pay fine of Rs.100/- with

default stipulation.

Factual Matrix

2. The facts in brief of the case which emerged from the record

are that 10.08.2003, when Inspector Sukhwinder Singh, SHO of Police

Station C-Division, Amritsar along with fellow police officials were

present on patrolling, he received secret information to the effect that the

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accused was selling smack on a Hero Honda motorcycle bearing

registration No.PB08-W-4218 in the area of Dana Mandi and if a raid was

conducted he could be apprehended with smack. Acting on this

information, Inspector along with his fellow police officials reached Dana

Mandi and saw the accused coming on a motorcycle who was

apprehended and his identity was verified. Inspector Sukhwinder Singh

apprised the accused of his legal right to be searched in the presence of a

Gazetted Officer or Magistrate as it was suspected that he was carrying

some narcotic substance to which the accused opted to be searched in the

presence of a Gazetted Officer and his consent memo was prepared. Sh.

Jagdish Singh Khera, DSP City-I, Amritsar was informed on wireless who

arrived at the spot and on his arrival, he disclosed the identity to the

accused whereupon the accused reposed confidence upon the said DSP

and opted to be searched in his presence and his consent memo was

prepared. Thereafter, on the search of the accused smack wrapped in

glazed paper was recovered from the front pocket of the shirt worn by the

accused out of which 05 grams was separated as sample and the

remaining on weighment found to be 30 grams, separate parcels of which

were prepared and sealed with the seal bearing impression SS.

3. After completion of investigation, report under Section 173

Cr.P.C. was presented in the Court. From the perusal of the report a prima

facie case punishable under Section 21 of the NDPS Act was made out

against the accused and he was charge-sheeted thereunder to which he

pleaded not guilty and claimed trial.

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

witnesses, besides producing documentary evidence. Statement of the

accused under Section 313 Cr.P.C. was recorded but no evidence in his

defence has been led by him.

Submissions by learned counsel for the parties

5. During the course of arguments learned counsel for the

appellant has submitted that although, he does not wish to challenge the

conviction of the appellant under Section 21 of the NDPS Act but he

would be satisfied in case a lenient view is taken with respect to the

sentence which has been awarded to the appellant. In this regard, he has

submitted that the FIR in the present case is of the year 2003 and thus, the

appellant has suffered agony of trial/bail/appeal for all these years and the

appellant was granted the concession of bail and he has never misused

that concession. It is further submitted that the appellant is about 44 years

old and is not involved in any other criminal case. No purpose will be

served by sending him behind bars after about 21 years. He has already

mended his way of life and joined the mainstream of society. The

appellant has already undergone 01 month and 18 days of actual custody

out of sentence of 04 months awarded to him. Therefore, he has prayed

that the appeal be partly allowed and the sentence awarded to the

appellant be reduced to the period already undergone.

6. Learned counsel for the State has stated that the judgment of

the learned trial Court below has been passed after considering the entire

evidence and material on record. The other factual aspects have not been

rebutted by the learned counsel for the State. He has also produced on

record the custody certificate of the appellant, which is taken on record, as

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per which, the period of custody as stated by the learned counsel for the

appellant, is reiterated.

Analysis

7. After having heard learned counsel for the parties and

perusing the paper book, this Court finds substance in the submissions

made on behalf of the appellant regarding reduction of sentence.

8. On perusal of judgment passed by Trial Court, this Court is

of the considered view that the Trial Court has not committed any error in

appreciation of evidence available on record. Further, it is found that the

Trial Court considered the evidence available on record and correctly

found that the case of the prosecution is well supported by the witnesses

and documentary evidence. The procedure was well followed by the

prosecution and the witnesses have profoundly supported its case. The

Trial Court has well considered the material available on record, hence no

infirmity is found in the impugned order of conviction passed by the Trial

Court, accordingly the same is upheld.

9. So far as the sentence is concerned, the matter is related to

the incident happened on 10.08.2003, more than twenty one years ago.

Since no minimum sentence is provided under the provision, the request

of reducing sentence seems to be proper. The sentence of 04 months

awarded by the trial Court can be reduced to already undergone i.e. 01

month and 18 days due to the following reasons:

(i) Appellant is now about 44 years old, and facing the

agony of protracted trial for about 21 years.

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(ii) As per custody certificate, the appellant was

granted bail by this Court on 10.10.2006, however,

he did not misuse the concession of same.

(iii) The appellant is not involved in any other criminal

case.

(iv) The appellant has mended his way of life and

joined the mainstream of the society.

10. The Hon'ble Supreme Court in 2006(4) RCR (Criminal) 645

titled as " R. Soundarajan v. Seed Inspector, Coimbatore and another"

observed as under:-

"26. We have carefully perused the entire evidence and documents on record and heard the learned counsel for the parties at length. On consideration of the totality of the facts and circumstances of this case, particularly in view of the statement made by the learned counsel for the State, in our considered view, the ends of justice would be met, if the sentence of the appellants is reduced to the period already undergone by them. The appellants were released by this Court during pendency of these appeals and they are now not required to surrender. The fine as imposed by the trial Court, if not already paid, would be paid within four weeks from the date of this judgment."

11. A co-ordinate Bench of this Court in Rupesh Kumar @

Kala's case (supra) has held as under:-

"Appellant had faced trial in FIR No. 58 dated 1.6.2016 registered at Police Station City Budhlada, District Mansa under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the Act' for short). The trial Court vide judgment/order dated 5.9.2017 convicted the appellant for commission of offence punishable under Section 22 of the Act, and sentenced him to undergo two

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years rigorous imprisonment and to pay a sum of Rs.5000/- as fine and, in default of payment of fine, to further undergo rigorous imprisonment for a period of one month. Hence, the present appeal by the accused-appellant.

As per the prosecution case, appellant was found in conscious possession of 510 tablets of "Almax-05"containing the salt "Alprazolam" (51 strips of tablets of Alprazolam, each of 10 tablets) without any permit or licence.

During the course of arguments, learned counsel for the appellant has not challenged the conviction of the appellant under Section 22 of the Act as ordered by the Trial Court but has submitted that the sentence qua imprisonment of the appellant be reduced to the period already undergone by him. Learned counsel for the appellant has further submitted that the appellant is a poor man and confined in jail and has no means to pay the fine. Appellant is the only bread earner of the family. In support of his arguments, learned counsel has relied upon the judgment in Mukesh v. State of M.P. 2015 (1) RCR (Criminal) 251 where in Hon'ble the Supreme Court has reduced the sentence to already undergone. Learned counsel for the appellant has also placed reliance on the judgment of this Court in Balvinder Singh v. State of Haryana 2012 (2) RCR (Criminal) 458, wherein it was held that the contraband recovered from the accused does not fall within the definition of commercial quantity and the ends of justice would be best met if the substantive sentence of imprisonment be reduced to that already undergone by him.

A perusal of the custody certificate of the appellant, placed on record reveals that the appellant has undergone about one year three months and seven days of actual sentence and is not involved in any other criminal case. Appellant has been facing criminal proceeding since the year 2016. Moreover, recovery of 510 tablets of "Almax05"containing the salt "Alprazolam" effected from the possession of the accused falls in the ambit of non- commercial quantity.

Keeping in view the submissions made by learned counsel for the appellant, it would be just and expedient to reduce the sentence qua imprisonment of the appellant to the period already undergone by him."

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Conclusion

12. Accordingly, keeping in view the submissions made by the

learned counsel for the appellant, it is a fit case where the sentence qua

imprisonment is liable to be reduced to already undergone by the

appellant. Hence, the conviction of the appellant under Section 21 of the

NDPS Act is maintained and the sentence qua the imprisonment of the

appellant is reduced to the period already undergone by him. The bail

bonds of appellant-accused stand discharged.

13. Pending miscellaneous application(s), if any, shall also stand

disposed of.

14. The case property if any may be dealt with as per rules after

expiry of period of limitation for filing the appeal(s). Record of the case

be sent back to the Court below.

                                                 (KIRTI SINGH)
                                                    JUDGE

10.05.2024
Ramandeep Singh


      Whether speaking/reasoned                                Yes/No
      Whether reportable                                       Yes/No




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