Allahabad High Court
Suresh Trivedi vs Union Of India Thru. D.R.I. Lko on 10 April, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on 28.03.2023 Delivered on 10.04.2023 A.F.R. Court No. - 27 Case :- CRIMINAL APPEAL No. - 1918 of 2019 Appellant :- Suresh Trivedi Respondent :- Union Of India Thru. D.R.I. Lko Counsel for Appellant :- Pal Singh Yadav, Chandra Shekhar Pandey,Prathama Singh Counsel for Respondent :- Digvijay Nath Dubey Hon'ble Brij Raj Singh,J.
1. This criminal appeal has been filed under Section 374 (2) Cr.P.C. against the impugned judgment and order dated 05.07.2019 passed by VIth Additional District and Sessions Judge/Special Judge/Prevention of Corruption Act (U.P.S.E.B.) Lucknow in Criminal Case No.38 of 2015, Case Crime No.29 of 2014, under section 8 (c)/20(b)(ii)(C) of The Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ''NDPS Act') whereby convicting and sentencing the appellant for 15 years rigorous imprisonment and fine of Rs.1,50,000/- and in default of payment of fine, six months additional simple imprisonment, under section 25 NDPS Act, Police Station DRI, Lucknow for 10 years simple imprisonment and fine of Rs.1,00,000/- and in default of payment of fine, additional simple imprisonment for four months. Both the sentences were directed to run concurrently and that the period of confinement in jail shall be remitted.
2. As per prosecution case, the complainant has stated that he received information on 17.08.2014, that a white Swift Dezire Car bearing No.UP78 BW 8210, is being used for smuggling of contraband charas of commercial quantity by concealing it in cavity of back seat of the car. After getting information, a team of Officers of Directorate of Revenue Intelligence (in short ''DRI') comprising of Shri Sanjeev Katiyar, Dharmendra Kumar, Fahim Raja and Ajit Kumar were entrusted to apprehend the accused. Section 42 of NDPS Act was complied with and thereafter the aforesaid team proceeded to Shaheed Path on the Faizabad Road at 11:30 a.m. The team had also taken witnesses Pawan Singh, Radhey Lal. They were waiting for arrival of the aforesaid Swift Car and they saw that said car was coming to the place where they were standing. They surrounded the car and a person introduced himself as Driver of the car. The person sitting on the driving seat told that his name was Suresh Trivedi and other person told that his name was Lakshman Sharma. Thereafter, the information was given to the higher authorities of DRI. The car driver denied any contraband charas in the car and when some pressure was put, he told that there is cavity at the back seat of the car in which charas has been concealed. In compliance of Section 50 of NDPS Act, Sanjiv Katiyar, the informant had given notice to Suresh Trivedi and Lakshman Sharma and they were asked whether they wanted to be searched before the Gazetted Officer. Both the accused persons stated before them that they did not want to get themselves interrogated or searched by the Gazetted Officer. Both the accused were brought to the office of DRI 2/31 Vishal Khand, Gomti Nagar. The car was checked and cavity was found in the back seat of the car in which 111 packs of charas was found in the polythene cover. The total weight of charas was 107 kg and about 25-25 samples of recovered charas were prepared and they were sealed on the spot and it was found that the market value of the recovered charas was 1,07,00,000 i.e. (Rupees One Crore Seven lacs.). The sample was sealed and signatures were made on the sealed cover. The recovery memo was prepared by Sanjiv Katiyar, the Information Officer on 17.08.2014 and the proceeding ended at 11 o'clock in the night of 17.08.2014. The independent witness also made their signature on the recovered memo. The statement of both the accused Suresh Chandra Trivedi and Lakshman Sharma were recorded on 18.08.2014 and by following section 43 of NDPS Act, they were arrested and were produced before the court on 18.08.2014. Thereafter, they were sent to jail by the Judicial order. The sample was sent for FSL examination to Delhi. The FSL report dated 08.10.2014 and 24.09.2014 indicates that the samples were of charas. After getting adequate evidence, both the accused Lakshman Sharma and present appellant were booked under section 8 (c)/20(b)(ii)(C)/25 NDPS Act, 1985 and case was registered at Police Station DRI, Lucknow.
3. The Investigating Officer filed complaint under section 8 (c)/20(b)(ii)(C)/25 NDPS Act, 1985 and on the basis of complaint, recovered contraband charas, the samples, the site plan, the statement of accused and medical report and the FSL report, the court framed the charges on 27.05.2016 against both the accused under the aforesaid sections. The accused appellant pleaded not guilty and requested for trial.
4. The prosecution had produced PW1 Sanjiv Katiyar, Information Officer of DRI; PW2 Dharmendra Kumar; PW3 Abhishek Chatterjee. Certain evidences from Exhibits Ka-1 to Exhibit ka-32 were also examined.
5. The appellant and co-accused Lakshman Sharma were confronted under Section 313 Cr.P.C. and they deposed before the Court that they were falsely implicated. Learned counsel submitted that the police had arrested the appellant and other co-accused from their house and they were falsely implicated by showing false recovery.
6. After hearing the arguments on 27.05.2016, it was found that charges were framed and there was some defect i.e. why again charges were framed on 04.07.2019 under Sections 8(c)/20(b)(ii)(c)/25 NDPS Act, 1985 and charges were framed separately. The accused pleaded not guilty and requested for trial and also denied the charges. The Special Prosecuting Officer submitted that no evidence was required and submitted that evidence adduced earlier, may be considered. After adducing evidence on record, the trial court passed judgment convicting and sentencing the appellant under the aforesaid sections, hence, the present appeal has been filed by the accused appellant.
7. PW1, Information Officer Sanjiv Katiyar, was examined before the Court and he deposed before the Court that on 17.08.2014, he was asked by DRI to reach office at 10:30 a.m. He reached office at 10:30 a.m. where Dharmendra, Fahim Raja, Ajit Kumar were present. It was told to him that information was received that white car was used for smuggling contraband charas which is coming from Barabanki to Lucknow and will go to Kanpur. On the written information, the team proceeded to Faizabad road at 11:30 through private vehicle. They also took two witnesses from Husariya Chauraha, Gomti Nagar and after reaching to the place, they were waiting at 4 o'clock in the evening, they saw that a car was coming from Faizabad Road which was surrounded by them. The team members introduced themselves. The person sitting on driving seat told his name as Suresh Trivedi and at the side of the driver Lakshman Sharma co-accused was sitting. They were asked by the search team that they were keeping contraband charas in the car and they accepted the fact that they were in possession of charas in the car. Section 50 of NDPS Act was complied with. They submitted before them that they did not want to be searched before any Gazetted Officer and they may be searched by search team. Thereafter, both accused were brought to the office of DRI, House No.2/31 Vishal Khand, Gomti Nagar, Lucknow. The cavity was found in the back seat of the car in which 111 packs were found in the polythene. The samples were taken and prima facie; it was found that it was charas. 25-25 gms charas samples were taken and they were packed and sealed. The entire contraband charas was sealed in four bags and the bags were sealed on which signatures of the search team was made. Both accused told that they had gone to Nepal border through Barabanki where Ramesh loaded the charas which was to be delivered to Kanpur. As soon as they were about to reach on the road of Shaheed Path, they were arrested by the search team. The complainant PW1 further submitted before the Court that proceeding went on till 11:30 in the night of 17.08.2014. The statement of the accused were recorded and memo was prepared. The samples were taken and the contraband charas was also sealed. The accused were examined by the Doctor and thereafter they were remanded. PW2 Dharmendra Kumar, Information Officer and PW3 Abhishek Chaterjee were members of search team along with PW1. They have stated the same facts which have been stated by PW1 before the Court and they have supported the prosecution case as set up in the complaint.
8. PW3 has admitted in examination-in-chief that he was made Investigating Officer by the State vide order dated 25.08.2014 and he was also authorised to file complaint and all the three witnesses of fact deposed and tried to prove the case of prosecution.
9. In cross examination, PW1 Sanjiv Katiyar deposed that incident took place in August 2014 and he was unable to remember the date. He deposed that his statement was recorded after 3-4 months from the date of incident. He deposed that he reached to the place by Innova Car along with two independent witnesses, who were picked at Husariya Chauraha. He further stated that witnesses were not having vehicle. He further deposed that addresses of the witnesses were not verified. He stated that at 4:40 in the evening, the car was coming and it was stopped by the driver without any protest.
10. In cross examination, PW3 Abhishek Chaterjee, deposed that he was Investigating Officer and was not present at the time of arrest of the accused. He neither signed the recovery memo nor recovery memo was prepared before him and the recovered charas was also not sealed before him. He was also not involved in doing weight of the charas. He could not state the date of incident. He further deposed that he has not recorded the statement of the accused rather he had taken statement of the officials of the department. He further deposed that under section 67 of NDPS Act, notice was sent and but the same came back due to incomplete address.
11. While going through the record, a very wider issue has been raised by learned counsel for the appellant that the appellant was not provided legal assistance during trial and at many stages, the proceedings of trial were done in absence of the counsel for the appellant. He has submitted that pairokar of the appellant had left pairvi and prosecution led the witness PW3 on 18.12.2018 and rest of the examination-in-chief completed on 23.1.2019 and on the same day, cross examination on behalf of Lakshman Sharma conducted by amicus curiae and the next date fixed was on 29.01.2019 and date for cross examination of appellant was fixed on 11.02.2019. On 11.02.2019, PW3 was not present in the court and on the statement of learned counsel for the prosecution, the evidence of the prosecution was closed on 11.02.2019 and the order was passed that "prosecution witness closed." it has been submitted by learned counsel that without affording any opportunity to the appellant, learned trial court neither provided any counsel nor amicus curiae and order was passed for cross examination with PW3 thus, the trial is fatal. He further submitted that on 18.2.2019, without providing any amicus curiae to the appellant, statement under Section 313 Cr.P.C. was recorded and thereafter case was fixed on 03.07.2019 for alteration of charge. On 03.07.2019, the accused persons were not summoned from District Jail, Lucknow and next date was fixed on 04.07.2019 for alteration of charge and charges were altered on 04.07.2019. It has been submitted by learned counsel for the appellant that appellant is confined in jail since long time that is why his pairokar could not arrange the expenses and counsel could not be engaged after evidence of PW2 as such no counsel of appellant appeared on his behalf. In such circumstances, it was desirable to provide amicus curiae to the appellant under the provision of Section 39-A of the Constitution of India as well as Section 304 Cr.P.C. and Section 9 of the Legal Service Authority Act, 1987.
12. The argument was advanced by learned counsel for the appellant that the matter was heard before this Court. This Court vide order dated 27.01.2013 directed the counsel for the appellant to file affidavit indicating as to at what stage, there was no counsel for the appellant representing his case before the subordinate Court and ten days' time was granted to file affidavit and the learned counsel for the respondents was also directed to file reply of the affidavit.
13. In pursuance of the directions issued by this Court, the supplementary affidavit dated 28.01.2023 has been filed and the appellant has made specific averment in paras 2,3, 4, 5 and 6 in which certain dates have been mentioned and it has been pointed out that appellant was not provided any counsel/amicus curiae and the proceedings of the trial was conducted without providing legal assistance. Therefore, the entire trial is vitiated under Article 21 of the Constitution of India.
14. Learned counsel for the DRI has filed his reply on 16.02.2023 to the supplementary affidavit of the appellant. The said reply filed by DRI is relevant to be looked into and paras 3, 4 and 5 of the supplementary affidavit of appellant has been replied and DRI has not specifically denied the averment of supplementary affidavit and nowhere it is replied by DRI that appellant was provided counsel or legal assistance. Learned counsel for the appellant has also annexed the order sheet of various dates which indicate that accused have made their signatures and learned counsel for DRI has made his signature but there is no counsel for appellant who has appeared. The order sheet dated 29.01.2019, 11.02.2019, 29.11.2018, 11.01.2019, 23.01.2019 24.06.2019, 03.07.2019 indicates that no counsel for accused appellant has represented his case.
15. Learned counsel for the appellant has relied upon the judgment of Hon'ble Supreme Court in case of Ramanand @ Nandlal Bharti v. State of Uttar Pradesh reported in 2022 LiveLaw (SC) 843 in Criminal Appeal No.64-65 of 2022 dated 13.10.2022.
"39A. Equal justice and free legal aid. --The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities."
121. Section 304 of the CrPC refers to legal aid to the accused at State expenses in certain cases which reads thus:
"304. Legal aid to accused at State expense in certain cases.--
(1) Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State.
(2) The High Court may, with the previous approval of the State Government, make rule providing for--
(a) the mode of selecting pleaders for defence under sub section (1);
(b) the facilities to be allowed to such pleaders by the Courts;
(c) the fee payable to such pleaders by the Government, and generally, for carrying out the purposes of sub section (1).
(3) The State Government may, by notification, direct that, as from such date as may be specified in the notification the provisions of subsections (1) and (2) shall apply in relation to any class of trials before other Courts in the State as they apply in relation to trials before the Courts of Session."
122. Under Section 9 of the Legal Services Authorities Act, 1987, the District Legal Services Authorities are constituted for every District in the State to exercise powers and perform functions conferred on, or assigned to, the District Authority under the said Act.
123. This Court in para 13 of the judgment reported in Kishore Chand v. State of Himachal Pradesh, (1991) 1 SCC 286, held thus:
"13. Though Article 39A of the Constitution provides fundamental rights to equal justice and free legal aid and though the State provides amicus curiae to defend the indigent accused, he would be meted out with unequal defence if, as is common knowledge the youngster from the bar who has either a little experience or no experience is assigned to defend him. It is high time that senior counsel practising in the court concerned, volunteer to defend such indigent accused as a part of their professional duty. If these remedial steps are taken and an honest and objective investigation is done, it will enhance a sense of confidence of the public in the investigating agency."
124. This Court, in the case of Zahira Habibullah Sheikh (5) and Another v. State of Gujarat and Others, reported in (2006) 3 SCC 374, has observed in paragraphs 30, 35, 38 and 39 as under:
"30. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of the courts of justice. The operative principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial: the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences.
x x x x
35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affects the whole community as a community and is harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice often referred to as the duty to vindicate and uphold the "majesty of the law". Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.
x x x x
38. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an over hasty stage managed, tailored and partisan trial.
39. The fair trial for a criminal offence consists not only in technical observance of the frame, and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice."
16. However, important issue has been raised by the learned counsel for the appellant that the prosecution led the witness PW3 on 18.12.2018 and thereafter rest of examination in chief was completed on 23.01.2019 and on the same date, cross examination of Lakshman was conducted by amicus curiae and the next date was fixed was 29.01.2019 and thereafter next date for cross examination by the appellant was fixed on 11.02.2019 but PW3 was not present in the Court and on the submission of learned counsel for the prosecution, the evidence of prosecution was closed on 11.2.2019 and the order was passed that "prosecution witness closed" without affording any opportunity of cross examination to the appellant in absence of appellant's counsel.
17. Heard Shri Pal Singh Yadav, learned counsel for the appellant and Shri Digvijay Nath Dubey, learned counsel for DRI and perused the record.
18. Learned counsel for the appellant has submitted that two independent eye witnesses who were mentioned by the prosecution were not produced before the Court. He has submitted that all the three witnesses were departmental witnesses whereas two independent eye witnesses have been shown as independent witnesses but none of them have been examined before the Court thus, the prosecution case is highly doubtful and there is false implication. It has been further submitted by learned counsel for the appellant that Court had second time framed charges and the appellant was framed charges under Section 25 of NDPS Act on 04.07.2019. The appellant had pleaded not guilty against the charge framed second time under Section 25 of NDPS Act and requested for trial which is mentioned in the order dated 04.07.2019. It is submitted by learned counsel for the appellant that without adducing any evidence on record, final judgment was passed on 05.07.2019 just after one day which goes to show that the trial is unfair and there is complete violation of the Article 21 of the Constitution of India.
19. Learned counsel submitted that the prosecution led the witness PW3 on 18.12.2018 and cross examination on 23.1.2019 of Lakshman Sharma was conducted by amicus curiae and next date fixed was 29.01.2019 and again next date was fixed for cross examination on 11.02.2019 but PW3 was not present and on the request of learned counsel for the prosecution, evidence of the prosecution was closed on 11.2.2019 without affording any opportunity of cross examination to the appellant. The cross examination of the appellant was mandatory but neither amicus curiae was engaged nor any opportunity was provided to the appellant to cross examine PW3 and only on the statement of learned counsel for the prosecution, the evidence was closed. Thereafter, the case was fixed for 313 Cr.P.C. the statement was recorded but no amicus curiae was provided to the appellant. He has submitted that pairokar of the appellant had already left pairvi therefore, it was incumbent upon the trial court to provide amicus curiae but in absence thereof, case was fixed on 03.07.2019 for alteration of charge and the charges were framed in absence of appellant's counsel. The final judgment was passed on 05.07.2019 without providing any counsel to the appellant. It has been submitted that trial is unfair and there is complete violation of Article 21 of the Constitution of India because the appellant was not provided opportunity through counsel to cross examine PW3 and the charges were altered under Section 25 of NDPS Act and thereafter, no evidence was led either by prosecution or any opportunity was provided to the appellant to lead the evidence. Learned counsel for the appellant has submitted that the statement of fact made by the appellant that he was not given amicus curiae has not been denied by the DRI while filing the reply of the affidavit filed by the appellant.
20. On the other hand, learned counsel for the DRI has submitted that 107 kgs of charas of commercial quantity amounting to Rs.One crore seven lac has been found from the possession of the appellant. He has submitted that three eye witnesses have accounted the case against the appellant and they have been examined before the court and they had deposed the prosecution case, which goes to show that the appellant was involved in smuggling of commercial quantity of charas. He has submitted that all the requisite procedure was followed and thereafter the appellant was arrested and the trial court conducted the trial and after adducing the evidence on record, the court has convicted appellant under section 8 (c)/20(b)(ii)(C) and Section 25 NDPS Act, 1965. The judgment is justified and passed after adducing the evidence of record and no interference is called for. Learned counsel for DRI has relied upon catena of judgments which are as follows: -
(i) Azeemul Hasan v. Union of India AIROnline 2022 All 3821 ;
(ii) Sridham Adhikari v. Union of India AIROnline 2021 All 6814;
(iii) Manoj Kumar Soni v. Union of India AIROnline 2020 All 2434 ;
(iv) Chandra Shekhar Prasad Sah v. Union of India AIROnline 2022 All 1484 ;
(v) Rajendra Singh v. State of U.P. Lucknow and others 2017 (6) ALJ 482; (2017) 6 All WC 6151
(vi) Fuman Singh v. Union of India AIROnline 2022 All 3819 ;
(vii) Mukesh Kumar v. Union of India AIROnline 2022 All 3820 ;
(viii) Raj Kumar Savita v. Union of India 2021 (3) ALJ 748; AIROnline 2021 All 522.
21. After hearing learned counsel for both parties, it is apparent that PW3 was examined by amicus curiae of Lakshman Sharma co-accused on 23.1.2019. The proceeding dated 23.01.2019 itself indicates that Lakshman Sharma co-accused was represented through amicus curiae. The order sheet indicates that on 11.02.2019, the case was called out and on the oral statement of learned counsel for the prosecution, case was fixed for statement under Section 313 Cr.P.C. The entire order sheet dated 18.12.2018, 11.1.2019, 23.1.2019, 29.01.2019, 11.02.2019 clearly indicates that there was no counsel representing the case of the appellant and the proceeding of PW 3 was closed on the oral statement of ADGC without affording opportunity by providing any counsel to the appellant to cross examine PW3.
22. Learned counsel for DRI has filed counter affidavit dated 16.2.2023 in response to the supplementary affidavit dated 28.1.2023 of the appellant and in paras 3, 4 and 5 clearly indicates that he was not provided amicus curiae to represent his case because his pairokar has left pairvi. The said paras 3, 4 and 5 of the affidavit is replied by the DRI vide affidavit dated 16.2.2023 and in paras 2,3 and 4 of the affidavit, there is no denial that the appellant was provided amicus curiae to represent his case.
23. The Supreme Court has dealt the issue of amicus curiae of under trial regarding the representation of case through counsel. The case of Ramanand @ Nand Lal Bharti (Supra). It is thus clear that trial has become fatal and in absence of counsel, the proceedings were completed and appellant was not afforded amicus curiae therefore, trial at the time of adducing evidence of PW3 and the second framing charge which was done on 04.07.2019 and even Section 313 Cr.P.C. proceeding was recorded in absence of appellant's counsel. Article 21 of the Constitution of India is completely violated and trial was conducted without affording opportunity to lead the evidence through counsel.
24. The record reveals that on 04.07.2019 the charges were framed second time under Section 25 of NDPS Act. The charges were read and the accused pleaded not guilty and requested for trial. However, order dated 04.07.2019 further indicates that on the statement of counsel for prosecution evidence was closed and the judgment was passed on 05.07.2019 just after one day without leading the evidence after framing of charges, second time. The order dated 04.07.2019 available on record is quoted below :-
U;k;ky;&"k"Ve vij ftyk tt@fo'ks"k U;k;k/kh'k@ ih0lh0,DV] ¼;wih,lbZch½ y[kuÅA fd0 dsl ua0 38@2015 MhvkjvkbZ izfr lqjs'k f=osnh vkfn 04-07-2019 okn is'k gqvkA i=koyh fu.kZ; gsrq fu;r gSA vfHk;qDrx.k lqjs'k f=osnh ,oa y{eu 'kekZ e; fo}ku vf/koDrk mifLFkr gSA fo'ks"k yksd vfHk;kstd Hkh mifLFkr gSA ekeys esa fu.kZ; rS;kj djrs le;] i=koyh ds voyksdu ls Li"V gqvk fd fnukad 27-05-2016 dks esjs fo}ku iwokZf/kdkjh }kjk vfHk;qDrx.k lqjs'k f=osnh ,oa y{eu 'kekZ ds fo:) ,d gh 'kh"kZ esa vijk/k vUrxZr /kkjk&8¼lh½@20¼ch½¼ii½ ¼lh½@25 ,uMhih,l,DV ds v/khu vkjksi fojfpr dj fn;k x;k gS tc fd mDr vijk/k esa /kkjk&20 o 25 n.MkRed micU/k ls lacaf/kr /kkjk;sa gS ftlesa fof/k vuqlkj i`Fkd 'kh"kZ esa vkjksi fojfpr fd;k tkuk pkfg;s Fkk] blfy;s fu.kZ; ls iwoZ mijksDr fojfpr vkjksi eas la'kks/ku djrs gq;s] mijksDr nksuks /kkjkvksa esa i`Fkd& i`Fkd 'kh"kZ esa vkjksi fojfpr fd;k tkuk U;k;ksfpr izrhr gksrk gSA rnuqlkj vfHk;qDrx.k lqjs'k f=osnh ,oa y{eu 'kekZ ds fo:) mijksDr vkjksi vUrxZr /kkjk&8¼lh½@20¼ch½¼ii½¼lh½ ,oa /kkjk&25 ,uMhih,l,DV ds v/khu i`Fkd&i`Fkd 'kh"kZ esa vkjksi fojfpr fd;k x;kA vfHk;qDrx.k dks mDr vkjksi i<+dj lquk;k o le>k;k x;kA vfHk;qDrx.k us mijksDr vkjksi ls badkj fd;k rFkk fopkj.k dh ekax dhA fo'ks"k yksd vfHk;kstd }kjk iwoZ esa gh vfHk;kstu }kjk izLrqr lk{; dks i<+s tkus o vU; dksbZ lk{; u fn;s tkus dk rdZ nsrs gq;s] rnuqlkj vkns'k i= ij i`"Bkadu fd;k x;k gSA vfHk;qDrx.k dh vksj ls Hkh fdlh lk{kh ls izfrijh{kk djus gsrq iqu% vkgwr fd;s tkus dk vuqjks/k ugh fd;k x;k gSA rnksijkUr mHk;i{kksa dh cgl lquh x;hA i=koyh fnukad 05-07-19 dks fu.kZ; gsrq is'k gksA g0 viBuh;
04-07-19 ¼Mh0,u0 flag½ "k"Ve vij ftyk tt@ fo'ks"k U;k;k/kh'k@ih0lh0,DV] ¼;wih,lbZch½ y[kuÅA
25. The other fact is also very relevant to mention here that the appellant had been arrested on 17.08.2014 and he was sent to jail on 18.08.2014. The appellant is in jail since 18.08.2014 till date and appellant had completed eight years, eight months in jail. The minimum punishment provided under section 8(c)/20(b)(ii)(C)and Section 25 NDPS Act is ten years and maximum punishment is 20 years. It is relevant to mention here that appellant has undergone almost minimum sentence in jail that too without fair trial.
26. After discussing above factual aspect, the findings of the Court are :-
(i) the appellant was not afforded amicus curiae to defend himself during evidence of PW3 and proceeding under Section 313 Cr.P.C. thus trial is fatal and is violative of Article 21 of the Constitution of India.
(ii) the charges framed on 04.07.2019 second time, under section 25 of NDPS Act, was not proved as no evidence was adduced on record and the judgment was passed just one day after i.e. 05.07.2019 thus trial appears to be vitiated.
27. In view of the aforesaid discussion, it appears that trial was badly conducted and is in violation of Article 21 of the Constitution of India and the appellant is undergoing in jail continuously since 18.08.2014 till date and has completed eight years, eight months in jail. Thus, almost minimum sentence of ten years as provided in the relevant provisions of NDPS Act is about to be completed and it would not be a fit case to remand the case to trial Court.
28. So far as prosecution case is concerned, the witness of fact PW1 Sanjeev Katiyar, PW2 Dharmendra and PW3 Abhishek Chatterjee had supported the prosecution case. Their statement before the Court has been recorded and after cross examination, it is found that they have supported the prosecution case. Sections 42, 50 of NDPS Act has been complied with. The examination of prosecution witnesses before the court indicates that their version before the court is the same which has been stated by them during investigation.
29. In view of the aforesaid discussion, it would not be appropriate to remand the matter for fresh trial because more than 8 1/2 years have passed and the appellant is in jail. I am of the view that the maximum punishment of 15 years awarded by court below is liable to be reduced to the minimum sentence i.e up to 10 years.
30. The appeal is partly allowed. The conviction is upheld. However, sentence is reduced up to ten years with fine of Rs. One lac under Section 8(c)/20(b)(ii)(C) and in case of default of fine, further six months simple imprisonment will be undergone by the appellant and Rs.One lac fine under section 25 of NDPS Act and in case of default, four months simple imprisonment shall be undergone by the appellant.
31. The appellant will be set free after completing ten years of sentence, if he is not warranted in any other criminal case.
32. Office is directed to send a copy of this judgment forthwith along with lower court record to the trial Court concerned for necessary compliance.
Order Date:10th April, 2023 Pks ( Brij Raj Singh, J.)