Deen Dayal vs State Of Uttarakhand
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Uttarakhand High Court

Deen Dayal vs State Of Uttarakhand on 13 May, 2024

Author: Pankaj Purohit

Bench: Pankaj Purohit

HIGH COURT OF UTTARAKHAND AT NAINITAL
           Criminal Appeal No.192 of 2010
Deen Dayal                                          ..... Appellant
                                   Vs.
State of Uttarakhand                               .....Respondent
Presence:
     Mr. Niranjan Bhatt, Advocate for the appellant/ accused.
     Mrs. Pushpa Bhatt, Deputy Advocate General along with
     Mr. S.C. Dumka, A.G.A. for the State of Uttarakhand.

Hon'ble Pankaj Purohit, J. (Oral)

Heard learned counsel for the parties.

2. The present criminal appeal has been preferred by the appellant against the judgment and order dated 06.08.2010, passed by Special Judge, Uttarkashi in Special Trial No.16 of 2007 State Vs. Deen Dayal, whereby, appellant was convicted under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced for one year's rigorous imprisonment with fine of Rs.5,000/-, with default stipulation of one month's additional imprisonment.

3. The brief facts of the case are that on 13.05.2009, Shri Chandra Singh Imlal, Pargana Magistrate, Purola, other employees Bharat Singh Mehar Naib Tehsildar Mori, Prem Singh Rawat Revenue Inspector Thadiyar, Ramesh Prakash Bahuguna Patwari Doni, Ravindra Singh Aswal Patwari Sunali, Balveer Singh Chauhan Patwari Chandeli, Barfiya Lal Patwari Fitari, Sheespal Singh Aswal Patwari Kotgaon, Jot Singh Chauhan Anusevak along with Patwari Doni reached Gram Seva at 11:00 AM to destroy the illegal Opium (Poppy) cultivation. As soon as they reached, some farmers of the village immediately started

destroying their Opium (Poppy) fields, but some people ran away after seeing them. On investigation of the spot from Khasra Khatauni of Gram Seva, it was found that illegal Opium (Poppy) cultivation was being done by Deen Dayal S/o Hajari Nand, Gram Seva/Dodra (Himanchal Pradesh) on the land of Khasra No.70 having area 0.181 hectares. In Khatauni, the said land Khata No.92 is registered in the name of Hajari Nand etc. On the spot, pods of the Poppy were broken and sealed in two separate envelopes. Fard (memo) was prepared on the spot and signatures of the employees were taken. Independent witnesses did not come to the spot. Since, the offence under Section 8/18 of the NDPS Act is committed against the accused, a fard (memo) was prepared and sent to Patwari Doni for further action.

4. On the basis of above fard (memo) recovery, on 13.05.2006, at about 05:00 PM, a Case Crime No.4 of 2006 under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 was registered. The Investigating Officer during course of investigation recorded the statements of witnesses, inspected the place of occurrence and obtained the report of contrabands and after investigation, a charge sheet was prepared against the accused under Section 8/18 of the NDPS Act.

5. On 17.09.2007, charge sheet was submitted before the Court and on 29.02.2008, charge was framed against the accused-Deen Dayal under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which the accused denied and claimed trial.

6. As many as eight witnesses were produced by the prosecution to prove its case against the appellant. They are PW1-Ramesh Prakash Bahuguna (then Patwari Doni), PW2-Bharat Singh Mehar (Retd. Tehsildar), PW3- Chandra Singh Imlal (Paragna Magistrate), PW4-Jot Singh Chauhan (Anusevak Tehsil Mori), PW5-Chandra Singh, PW6-Mehar Singh, PW7- Ravindra Singh Aswal (Patwari Purola) and PW8-Jabar Singh Aswal (Patwari Guradi).

7. After prosecution evidence, the statement of accused-appellant was recorded under Section 313 Cr.P.C. On completion of trial, the trial court convicted and sentenced the accused person as mentioned in paragraph 2 of this judgment. Hence this appeal.

8. Learned counsel for the appellant submits that the amount of fine, which was imposed upon him, was already deposited by him (Annexure No.2 of the memo of appeal) and he further prays that since, the appellant has already undergone the agony of criminal trial for so long and only one year imprisonment was awarded, the conviction may be affirmed and appellant may be sentenced only with monetary fine.

9. I have perused Section 18(a) of the NDPS Act, which prescribes the conviction as under:

"Section 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 license 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, 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."

10. From the perusal of the aforesaid provision, it is reflected that if a person is found guilty of offence under Section 8/18 of the NDPS Act involving a small quantity, the punishment provided is rigorous imprisonment for a term to be extended up to one year or with fine or with both. Since, the matter relates to the year 2009 and only small quantity of contraband was recovered from the possession of appellant, no useful purpose would be served to send the appellant to jail. In the given facts, the Court deems it proper to sentence the appellant to pay fine of Rs.10,000/- (Rupees Ten Thousand Only), which, the appellant shall deposit before the trial court within a period of one month from today.

11. In this view of the matter, appeal is dismissed. Conviction of the appellant under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is affirmed. However, the sentence so awarded by the trial court to the appellant is modified from one year rigorous imprisonment to that of fine of Rs.10,000/-. In case of default in making payment of fine, the sentence part passed by the trial court shall stand revived, which the appellant shall undergo.

12. Let a copy of this judgment, along with the TCR, be sent forthwith to the learned trial court for information/compliance.

(Pankaj Purohit, J.) 13.05.2024 PN/-