Delhi District Court
Mohd. Asif vs The State on 10 February, 2010
1 Crl.Appl.No. 07/2009
IN THE COURT OF MS. MADHU JAIN, ADDITIONAL SESSIONS
JUDGE03, NORTH, DELHI.
Crl.Appl.No. 07/2009
RC.SIB2004E0002
FIR No 604/02
PS: Hauz Khas
U/s 120B 258/259/260/34/468/471/472 IPC
Court Concerned/successor court:
Sh. Sanjay Bansal, ACMM, Delhi.
In the matter of :
Mohd. Asif
S/o Sh. Noor Ahmed
R/o 1594/30 Laxmi Nagar Khanapur,
Distt. Belgaum Karnatka
Presently lodged in Cell No.4 Banglore Central Prison,
Banglore, Karnatka.
....Appellant
Versus
The State
Through (C.B.I.)
.....Respondent
O R D E R
1. The present appeal has been filed by the appellant 2 Crl.Appl.No. 07/2009 u/s 375 (b) Cr.P.C. challenging legality of sentence passed by Ld. ACMM in RC.SIB2004E0002 in FIR No. 604/02 Police Station Hauz Khas.
2. Facts giving rise to the present appeal are that FIR No. 604/02 was registered at Police Station Hauz Khas and investigation later on was transferred to CBI. The offence in the present case was disclosed when accused Mansoor Ahmed was arrested in the case at Police Station Darya Ganj. Accused Mansoor Ahmed, Mohsin Azim Mullah @ Suleman, Mohd. Asif @ Ashish Patel and Deepak Kudale were having office at Y24, Green Park Main, New Delhi in the name and style of M/s City Enterprises. Upon receiving secret information, raid was conducted at the aforesaid address. Two accused were found there. The decoy customer asked for purchasing 1000 revenue stamps on 5% commission but accused Mohd. Asif was giving only 2% 3 Crl.Appl.No. 07/2009 commission. Upon much insistence, he agreed to give 5% commission. The decoy customer gave the numbered currency note and accused Mansoor gave back Rs. 50/ and the accused Mohd.Asif handed over the revenue stamps. Both were apprehended and search was conducted. Stamps worth of Rs.5,20,888/ were recovered. Both the accused disclosed that they were working for Abdul Karim Telgi who was in Bangalore jail at that time. After completion of investigation, charge sheet was filed against 16 persons. Since the offences alleged against the appellant was found triable by the court of Ld. ACMM, therefore, the case was remanded back to ld. ACMM by Sessions court.
3. Charge was framed against the appellant to which the appellant pleaded guilty and he has been convicted vide order dated 23.4.2009 and sentenced vide order dated 11.6.2009 and it is against this order of sentence, that appellant has filed the 4 Crl.Appl.No. 07/2009 present appeal.
4. One of the grounds of the appeal is that appellant is in jail since 05.10.2002 and is not having any money for making payment of such huge fine of Rs.5 lacs. An opportunity of reformation should always be afforded to a convict so that he can lead a normal life on his release into the society. But in the present case no such opportunity has been afforded to the appellant and he would be forced to remain in jail for most of his youthful years, if the impugned order is not set aside.
5. After filing of the appeal, notice was given to the CBI and the trial court record was summoned. Special PP for CBI appeared and contested the appeal.
6. I have heard ld. counsel for the appellant and ld. special PP for CBI and have carefully perused the record.
7. It is an admitted fact that the appellant alongwith the 5 Crl.Appl.No. 07/2009 other coaccused persons in the present case have pleaded guilty to the charges framed against him by trial court. The appellant has been sentenced by the trial court which is as under:
"(a) He is in custody in the present case since 5.10.2002. He is sentenced to undergo rigorous imprisonment for a period of 5 (Five) years and to pay a fine of Rs. 1,00,000/ (Rupees One lac) u/s 120B r/w 258/259/420/471/213 IPC and in default of payment of fine, he shall further undergo rigorous imprisonment for a period of one year;
(b) He is sentenced to undergo rigorous imprisonment for a period of 5 (five) years and to pay fine of Rs.
1,00,000/ (Rupees One lac) u/s 258 IPC and in default of payment if fine, he shall further undergo rigorous imprisonment for a period of one year;
(c) He is sentenced to undergo rigorous imprisonment for a period of 5 (Five) years and to pay fine of Rs. 1,00,000/ (Rupees One Lac) u/s 259 IPC and in default of payment of fine, he shall further undergo rigorous imprisonment for a period of one year;
6 Crl.Appl.No. 07/2009
(d) He is sentenced to undergo rigorous imprisonment for a period of 5 (Five) years and to pay fine of Rs. 1,00,000/ (Rupees One Lac) u/s 420 IPC and in default of payment of fine, he shall further undergo rigorous imprisonment for a period of one year;
(e) He is sentenced to undergo rigorous imprisonment for a period of 5 (Five) years and to pay fine of Rs. 1,00,000/ (Rupees One Lac) u/s 471 IPC and in default of payment of fine, he shall further undergo rigorous imprisonment for a period of one year;
All the sentences run concurrently. Benefit of set off u/s 428 Cr.PC. is given w.e.f. 5.10.2002"
8. There is no definite sentencing policy in India and every case has to be judged on its own facts and circumstances. The observation of the Hon'ble Supreme Court in case 2009 V AD (S.C. ) 515 titled as Sahdev vs. Jaibar @ Jai Dev & Ors. can very well be applied in the present case. The Hon'ble Supreme Court held as under: 7 Crl.Appl.No. 07/2009 "The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be as it should be a decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft the modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, 8 Crl.Appl.No. 07/2009 the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. For instance a murder committed due to deepseated mutual and personal rivalry may not call for penalty of death. But an organised crime or mass murders of innocent people would call for imposition of death sentence as deterrence. In Mahesh vs. State of MP (1987) 2 SCR 710), this court while refusing to reduce the death sentence observed thus:
"It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the accused would be to render the justicing system of the country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon"
Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of 9 Crl.Appl.No. 07/2009 every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this court in Sevaka Perumal etc. vs. State of Tamil Nadu (AIR 1991 SC 1463).
The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread.
Proportion between crime and punishment is a goal 10 Crl.Appl.No. 07/2009 respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted an unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.
After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factor and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle MCGDautha vs. State of Callifornia: 402 US 183: 28 L.D. 2d 711 that no formula of a 11 Crl.Appl.No. 07/2009 foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration or gravity of crime, the discretionary judgement in the facts of each case, is the only way in which such judgment may be equitably distinguished".
9. Reliance is also placed upon 2009 IV AD (S.C.) 1 titled as State of Karnataka vs. Muralidhar where in Hon'ble Supreme Court held as under: "The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.
Imposition of sentence without considering its effect on the social order in may cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offence against women, dacoity, kidnapping, misappropriation of public 12 Crl.Appl.No. 07/2009 money, treason and other offence involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.
The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal".
10. Now coming to the merits of the case, ld. trial court has rightly observed that magnitude and impact of offence committed 13 Crl.Appl.No. 07/2009 by the convicts on the society was so adverse that the trust of a common man in the administration was completely shaken. There remains no doubt that it is one of the most heinous crimes of the history. Due to scam the trust of the common man in the administration was completely shaken. Fake stamps worth hundreds of crores were got printed and sold to the innocent customer as genuine stamps in a preplanned and organized manner and therefore no undue sympathy can be shown to the appellant as it may result in common man loss of faith and trust in the criminal justice administration system also. It will further give rise to a premium on the offence as instead of a deterrent, image it will create in the mind of common man will be that after committing a fraud of such a great magnitude, a person can get free after spending some time in jail after pleading guilty and paying nominal fine.
14 Crl.Appl.No. 07/2009
11. The sentence awarded by the ld. trial court does not call for any interference. There is no infirmity or illegality in the same. The order of trial court is upheld. The appeal filed by the appellant is dismissed. There shall be no order as to cost. Trial court record alongwith a copy of this order be sent back. A copy of this order be also sent to concerned jail superintendent. Appeal file be consigned to record room.
(MADHU JAIN) ASJ03/NORTH/DELHI Announced in the open court today i.e. 10.02.2010.
15 Crl.Appl.No. 07/2009 Crl.Appl.No. 07/2009 Mohd. Asif vs. State (CBI) 10.2.2010 Present: None.
An application u/s 5 of Limitation Act for condonation of delay in filing the present appeal has been filed by the appellant. In the application, it is stated that the appellant is presently lodged in Bangalore jail in Karnataka and was unable to engage any counsel at Delhi directly. His brother Javed Noor Ahmed got the vakalatnama of the appellant signed on 04.7.2009 from Bangalore jail but he was unable to travel Delhi as he fell sick due to viral fever and was advised complete bed rest from 8.7.2009 to 16.7.2009 as a result of which he had to cancel his rail reservation for 11.7.2009 and he rescheduled his departure for 18.7.2009 and arrived at Delhi only on 20.7.2009. Thereafter he contacted the counsel and the counsel for the appellant immediately inspected 16 Crl.Appl.No. 07/2009 the judicial file and thereafter applied for the certified copies of the order. Due to the said reason the appellant failed to file the appeal within the stipulated period and there is delay of 21 days in filing the present appeal. Alongwith the application, the medical certificate and train ticket are also attached. It is stated that if the delay in filing the present appeal is not condoned, then the appellant shall suffer an irreparable loss.
I have heard ld. counsel for the appellant and special PP for CBI on the application for condonation of delay alongwith the appeal on merits.
Sufficient reasons have been shown by the appellant for condonation of delay in filing the present appeal. Furthermore the technicalities should not come in the way of justice and if the appeal is dismissed without giving an opportunity to the appellant of being heard, then he shall suffer an irreparable loss 17 Crl.Appl.No. 07/2009 and injury which cannot be compensated in terms of money. As such sufficient reasons have been shown by the appellant in not filing the appeal within the stipulated time, the application u/s 5 of Limitation Act filed by the appellant is allowed.
Vide separate order dictated and announced in the open court, the order dated 23.4.2009 and 11.6.2009 passed by the trial court is upheld. The appeal filed by the appellant is dismissed. There shall be no order as to cost. Trial court record alongwith a copy of this order be sent back. A copy of this order be also sent to concerned jail superintendent. Appeal file be consigned to record room.
(MADHU JAIN) ASJ03/NORTH/DELHI 10.2.2010