Uttarakhand High Court
Surendra Kumar Sharma vs State Of Uttarakhand on 15 June, 2021
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No.242 of 2006
Surendra Kumar Sharma ..... Appellant
Versus
State of Uttarakhand ....Respondent
Mr. Karan Singh Dugtal, learned counsel for the appellant.
Mr. Subhash Tyagi Bhardwaj, learned Dy. A.G. along with Ms.
Shivangi Gangwar, learned Brief Holder for the State.
Hon'ble R.C. Khulbe, J.
The present criminal appeal is directed
against the judgment and order dated 10.11.2006 passed
by the learned Special Session Judge, Pithoragarh in
S.S.T. No.04 of 2003, State Vs. Surendra Kumar Sharma,
whereby the learned Trial Court convicted the appellant
u/s 20 of the N.D.P.S. Act and sentenced him to undergo
three and half years' R.I. with fine of Rs.10,000/- in
default of payment of fine he was sentenced to undergo
six months' additional imprisonment.
2. Brief facts of the case are that, on 14.11.2002,
when S.H.O. B.L. Rawat along with Sudhir Kumar Singh,
Constable Rajpal Singh and Constable Govind Ballabh
were on patrolling duty, the informer informed them that
the accused is coming from village Kusauli and he is
carrying charas. Accordingly, the police party
apprehended the appellant and 250 gram charas was
recovered from the bag which was being carried by the
accused. Accordingly, on the basis of the said recovery,
recovery memo Ex.Ka-1 was prepared at the spot. On the
basis of recovery memo, a Chick FIR Ex.Ka-2 was lodged
at the police station Kotwali Pithoragarh on 14.11.2002
at 18:40 hours. GD Ex.Ka-3, Site map Ex-Ka-4 was also
prepared. Samples of the recovered article were taken
and sent to forensic laboratory, Agra. The report of FSL is
Ex.Ka-5. After investigation, charge-sheet Ex.Ka-6 was
submitted. Accordingly, cognizance was taken on
15.07.2003. After compliance of provision of Section 207
Cr.P.C; the charges were framed under Sections 18/20 of
the N.D.P.S. Act. The appellant denied all the allegations
and claimed to be tried.
3. In order to prove the case, the prosecution
produced PW1-Dhani Ram, PW2 S.I. Sudhir Kumar
Singh, who stated that on 14.11.2002 they were on
patrolling duty and informer informed them about the
appellant. Accordingly, the accused was apprehended.
The Search was conducted in presence of Tehsildar-
Dhani Ram and accordingly, 250 gram charas was
recovered from the bag of the accused.
4. PW3 S.I. Vijay Pal is the I.O. who prepared the
site map and further investigation was entrusted to S.O.
Jhulaghat, Mr. S.S. Rathore, PW4 Surendra Singh
Rathore is also the I.O. who recorded the statement of
witnesses and after completion of the investigation
submitted charge sheet Ex.Ka-6. PW5 Ishak Hussain,
who produced the contraband article before the S.D.M.
5. After completion of prosecution evidence,
statement of appellant was recorded u/s 313 Cr.P.C. in
which he denied all the evidences and stated that the
prosecution produced false evidences against him.
However, no evidence was produced in defence.
6. After hearing both the parties, learned trial
Court convicted the appellant and sentenced him as
mentioned in paragraph no.1 of the judgment.
7. Feeling aggrieved by the order of conviction and
sentence, the present appeal is preferred before this
Court.
8. Heard the learned counsel for the appellant as
well as learned counsel for the State.
9. It is submitted by learned counsel for the
appellant that he does not want to argue the case on
merits as the trial Court has rightly convicted the
appellant based on sufficient material on record; he fairly
submits that as per the recovery memo 250 gram charas
was recovered from his possession but when the said
contraband article was sent for forensic testing to Agra, it
was found to be 200 grams only and even during the
course of the trial, the star witnesses produced by the
prosecution admitted this fact that the total contraband
charas was 200 grams not 250 grams and lastly,
mentioned that since the matter relates to the year 2002;
there is no criminal history of the appellant; he is the
only bread earner of his family; he is about 60 year old
person; the appellant has already served 10 months out
of the total sentence awarded by the trial Court; and
prays that while affirming the appeal, the appellate Court
may consider to reduce the sentence awarded to the
appellant to the period already undergone by him.
10. Learned counsel for the State fairly submits
that he did not receive any information regarding criminal
antecedents of the appellant; as per the evidence only
200 grams charas was recovered from the possession of
the appellant; although the matter relates to the year
2002; the appellant has already served 10 months in jail
and 11 months RI would serve the purpose.
11. I have also gone through the entire evidence on
record. PW1 Dhani Ram and PW2 Sudhir Kumar Singh in
whose presence the contraband article was recovered
from the bag of the accused have proved the case beyond
reasonable doubt. As per the FSL report, the contraband
article was detected charas. The trial Court has rightly
convicted the appellant based on sufficient material
produced by the prosecution and there is no illegality and
infirmity in the impugned findings regarding conviction.
As regards to the sentence is concerned, since the matter
relates to the year 2002; the appellant has no criminal
history; he is about 60 years old; he is the only bread
earner of his family; and he has already served 10
months in jail. Accordingly, considering the entire facts of
the case, in my view, 11 months' RI imprisonment is
sufficient to serve the purpose.
12. On perusal of the operative portion of the
judgment, the Trial Court awarded six months'
imprisonment in default of payment of fine, in my view, it
is on higher side. Since the trial Court awarded
Rs.10,000/- as fine, accordingly, two months'
imprisonment is sufficient, in default of payment of fine.
13. In view of the above discussion, the appeal is
allowed in part. The appellant is sentenced as follows: -
A. The conviction and sentence under Section 20
of the N.D.P.S. Act is modified as 11 months' RI
instead of three and half years' RI, as awarded by
the trial court.
B. The fine awarded by the trial court under
Section 20 of the N.D.P.S. Act will remain intact.
However, the appellant will serve two months'
additional imprisonment in default of payment of
fine.
C. On completion of period of sentence, as
modified by this Court, he shall be released from jail
as per law and after due verification of records.
14. Let a copy of this judgment alongwith records
be sent back to the court concerned. The Registry is
directed to send a copy of this judgment to the jail
authority also for compliance.
(R.C. Khulbe, J.)
15.06.2021
Sukhbant
