Firoz Khan vs State Of Uttarakhand
2021 Latest Caselaw 406 UK

      IN THE HIGH COURT OF UTTARAKHAND AT
                    NAINITAL


            CRIMINAL APPEAL No.26 of 2021


Firoz Khan                          ...............             Appellant

                                Versus

State of Uttarakhand                      ............         Respondent
Mr. Mohd. Matlub, learned Counsel for the appellant.
Mr. Ranjan Ghildiyal, learned A.G.A. for the State.


                   Dated: February 23, 2021

Hon'ble R.C. Khulbe, J.

Since the appeal is delayed by 07 days,

accordingly, delay condonation application has been

moved supported by an affidavit. The respondent has

no objection to allow the said application. Accordingly,

the delay condonation application is allowed and the

delay is hereby condoned.

2. Heard learned counsel for the parties and with their consent, the appeal is disposed of at the admission stage.

3. This appeal is directed against the judgment and order dated 02.12.2020 passed by learned Special Judge, N.D.P.S. Act, Dehradun in S.S.T. No.15/2014 (Case Crime No.114 of 2013), P.S. Raipur, Dehradun), "State Vs. Firoz Khan", whereby the Court below has convicted the appellant-Firoz Khan under Section 8/20(b)(II)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced him to undergo

one year and six months' rigorous imprisonment with fine of Rs.20,000/-, and in default of payment of fine, he was directed to undergo three months' additional simple imprisonment.

4. In brief, on 17.08.2013 S.I. Subodh Kumar along with other police personnel were on law and order duty. When they reached Madhur Vihar, Sahastradhara Road, near Appollo International School, Dehradun, and the appellant was coming from opposite direction. On suspicion, the police personnel stopped the appellant. On his search, 200 gram charas was recovered from the bag which was being carried by the accused/ appellant. Accordingly, a recovery memo was prepared at the spot. After complying of provision of Section 207 Cr.P.C., charges were framed under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The appellant denied the same and claimed trial.

5. To prove its case, the prosecution examined PW1 Yogendra Singh. Thereafter, the appellant/ accused filed application for confessional statement and his confessional statement was recorded. On the basis of his confessional statement prosecution concluded the evidence.

6. After completion of prosecution evidence, the statements of accused-appellant was recorded u/s 313 of Cr.P.C., wherein, he confessed his guilt and denied to produce evidence in his defence. Accordingly, the appellant was convicted and

sentenced, as above. Aggrieved by it, the present appeal has been preferred.

7. I have carefully heard learned Counsel for the either party and perused the entire evidence available on the record.

8. I also came to this conclusion that the Trial Court has rightly held that the prosecution has successfully proved the Charge under Section 8/20 IPC against the appellant-Firoz Khan. The conviction recorded by the trial Court is based on evidence.

9. Learned Counsel for the appellant fairly argued that the conviction recorded by the trial Court is based on evidence and there is no illegality in the impugned finding of conviction recorded by the Trial Court; and he also does not want lay any challenge on the substantive part of the sentence, he only confined his prayer to the extent that three months' additional simple imprisonment, in default of payment of fine, may be reduced as the appellant is a very poor person; he has no means to livelihood and is unable to deposit the fine of Rs.20,000/- as imposed by the trial Court.

10. Learned State Counsel also does not oppose in granting the aforesaid prayer.

11. Considering the entire facts and circumstances of the case i.e. the appellant has already served one year and six months' rigorous imprisonment the substantive part of the sentence but so far as the three months' additional simple imprisonment in default of payment of fine is concerned he has already served 45 days in prison.

The appellant is a very poor person; he has no means to livelihood and is unable to deposit the fine of Rs.20,000/- as imposed by the trial Court, and also looking to the nature of the case, the sentence undergone by the appellant would meet the ends of justice.

12. For the reasons recorded hereinabove, the appeal preferred by the appellant-Firoz Khan is partly allowed with the following directions: -

A. The conviction part of the appellant- Firoz Khan, as awarded by the Trial Court under Section 8/20(b)(II)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985, is maintained.

B. Insofar as the three months' additional simple imprisonment in default of payment of fine is concerned, the same is hereby reduced to 45 days' simple imprisonment instead of three months' S.I. as awarded by the Trial Court.

C. The period already undergone by the appellant shall be set off, after verifying the documents, as envisaged under Section 428 Cr.P.C.

D. On completion of sentence of 45 days, as modified by this Court, appellant Firoz Khan shall be released from jail forthwith, if not required in connection with any other case.

13. Let a copy of this judgment and order along with the LCR be sent to the Court below for compliance.

14. Registry is directed to forthwith transmit the record of this case along with a copy of this judgment for compliance.

15. Pending application, if any, stands disposed of.

(R.C. Khulbe, J.) Sukhbant