Himachal Pradesh High Court
Dila Ram vs State Of H.P on 31 August, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A. No. 204/2017 Reserved on: 20.8.2023 Decided on : 31.8.2023 .
Dila Ram .....Appellant
Versus
State of H.P. ....Respondent
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
of The Hon'ble Mr. Justice Ranjan Sharma, Judge.
Whether approved for reporting?1 Yes For the Appellant:
rt For the Respondent:
Mr. Manoj Pathak, Advocate.
Mr. I. N. Mehta, Mr. Y. W. Chauhan, Sr. Additional Advocate Generals, Ms. Sharmila Patial, Addl. A.G. and Mr. J. S. Guleria, Dy.A.G. ____________________________________________________________________ Justice Tarlok Singh Chauhan, Judge The appellant/convict has been convicted and sentenced to undergo rigorous imprisonment for a period of 12 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to further undergo simple imprisonment for a period of 2 years for the commission of an offence punishable under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985( in short, "NDPS Act") and aggrieved thereby, has filed the instant appeal. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.::: Downloaded on - 01/09/2023 20:33:19 :::CIS 2
2 Even though the judgment stands assailed by the appellant by taking several grounds, however at the time of final .
hearing, learned counsel for the appellant has confined the challenge only to the question of period of substantial imprisonment.
3 Despite limited submission, we ourselves, in order to ascertain as to whether judgment of conviction is within the of settled parameters of law or not, have minutely examined the records. rt 4 Having perused the testimonies of witnesses of recovery of contraband substance from the conscious possession of the appellant, we do not find any illegality, infirmity or error in the findings returned by the learned Special Judge.
5 On 5.12.2015 at about 10:50 P.M, the appellant was found in conscious possession of cannabis, weighing 2.170 kgs in the shape of balls, which was kept in yellow colour bag carried by him in his right hand. The recovery was effected by ASI Mohan Joshi (PW8), earlier Head Constable, along with other police officials when they laid a 'nakka' at Shamshar Bridge. The appellant was informed of his statutory rights. The contraband substance was weighed, samples drawn, sealed and ::: Downloaded on - 01/09/2023 20:33:19 :::CIS 3 seized by the police officials and thereafter deposited with the MHC, who sent the samples for chemical analysis to the .
Forensic Science Laboratory. All papers of search, seizure and recovery were prepared in accordance with the settled principles of law. Report (Ext.PX) of the chemical analysis confirmed the recovered contraband substance to be charas.
6 We also find factum of recovery also to have been of brought to the notice of superior officer in accordance with law and FIR No. 112/2015, dated 6.12.2015, Ext. PW8/C to have rt been registered promptly at police station Anni on the basis of rukka, Ext. PW8/B. Seized sample and the remaining stuff were sealed and not tampered with at all. The sealed samples were opened only in the laboratory at the time of conducting chemical analysis. As such, the prosecution has been able to establish recovery of charas, from the conscious possession of the appellant beyond reasonable doubt, by leading clear, cogent, consistent and convincing evidence.
7 Learned counsel for the appellant in support of his sole submission regarding quantum of sentence would vehemently urge that in cases of instant kind, where large quantity of charas or contraband has been found, the Hon'ble Supreme Court has shown indulgence and reduced the ::: Downloaded on - 01/09/2023 20:33:19 :::CIS 4 sentence and would place reliance upon the following judgments:-
.
(i) Balwinder Singh vs. Asstt. Commr. Customs and Central Excise, (2005) 4 SCC 146;
(ii) Shahejadkhan Mahebubkhan Pathan vs. State of Gujarat, (2013) 1 SCC 570;
(iii) Yasihey Yobin vs. Department of Customs, Shillong, (2014) 13 SCC 344;
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(iv) Baldev Singh vs. State of Haryana, 2015(2) SCALE 308;
(v) Usman Shamshudeen
rt Shekh vs. State of H.P.,
2016(1) Shim.LC 283; and
(vi) Pradeep Bachhar vs. State of Chhatisgarh (2018) 13 SCC 600.
8 On the other hand, learned Deputy Advocate General would rely upon judgment rendered by the Hon'ble Supreme Court in Gurdev Singh vs. State of Punjab (2021) 6 SCC 558 to contend that offences under the NDPS Act have deadly impact on the society as a whole. Therefore, while awarding the sentence/punishment in case of the NDPS Act, the interest of the society as a whole is also required to be taken into consideration and while striking balance between the mitigating and aggravating circumstances, public interest, impact on the society as a whole will always tilt in favour of the ::: Downloaded on - 01/09/2023 20:33:19 :::CIS 5 suitable higher punishment; and merely because the accused is a poor man/and/or a carrier/ and or is a sole bread earner .
cannot be such mitigating circumstances in favour of the accused while awarding the sentence/punishment in the case of the NDPS Act.
9 We have heard the learned counsel for the parties and have also gone through the judgments cited at the bar.
of 10 In Balwinder Singh's case (supra), the appellant therein was found to be in conscious possession of 175 kg of rt heroin and 39 kg of opium of foreign origin and was sentenced to imprisonment for a period of 14 years, however the Hon'ble Supreme Court reduced the sentence from 14 years to 10 years by recording following reasons:-
4. In this case, the appellant Tarlochan Singh was the driver of the vehicle DIL 3372. He was also in custody of vehicle PJA 8677. His statement was recorded under Section 108 of the Customs Act. From his possession the articles of opium and heroin were recovered and in his statement he admitted that he knew about the presence of these drugs in the vehicle-and about the transport of the:
drugs illegally from Ludhiana to Bombay. It is evident from the statement made by him that he committed the offences punishable under Sections 18, 21, 22, 23, 25, 29 and 30 of the NDPS Act. We find no reason to interfere with the conviction and sentence entered against the appellant Tarlochan Singh and the criminal appeal stands ::: Downloaded on - 01/09/2023 20:33:19 :::CIS 6 dismissed. We are told that the appellant was convicted of this offence for the first time. The sentence imposed on him was imprisonment for a period of 14 years. Having regard .
to the facts and circumstances of this case, we reduce the sentence from 14 years to 10 years each for the offences under the NPDS Act and for the offence under Section 120-B IPC. The sentences shall run concurrently.
The direction to pay fine is maintained, but the default sentences shall also run concurrently.
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11 In Shahejadkhan Mahebubkhan Pathan's case (supra), the Hon'ble Supreme Court, in a case relating to rt recovery of 500 gm brown sugar (narcotic substance) modified the default sentence by taking into consideration the fact that the appellant therein was very poor and had to maintain his family and was first offender. It was observed as under:-
12) It is clear and reiterated that the term of imprisonment in default of payment of fine is not a sentence. To put it clear, it is a penalty which a person incurs on account of non-payment of fine. On the other hand, if sentence is imposed, undoubtedly, an offender must undergo unless it is modified or varied in part or whole in the judicial proceedings. However, the imprisonment ordered in default of payment of fine stands on a different footing.
When such default sentence is imposed, a person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. Accordingly, he can always avoid to undergo imprisonment in default of payment of fine by paying such ::: Downloaded on - 01/09/2023 20:33:19 :::CIS 7 an amount. In such circumstance, we are of the view that it is the duty of the Court to keep in view the nature of offence, circumstances in which it was committed, the .
position of the offender and other relevant considerations such as pecuniary circumstances of the accused person as to character and magnitude of the offence before ordering the offender to suffer imprisonment in default of payment of fine. The provisions of Sections 63 to 70 of IPC make it clear that an amount of fine should not be harsh of or excessive. We also reiterate that where a substantial term of imprisonment is inflicted, an excessive fine should not be imposed except in exceptional cases. (2) The imprisonment awarded under this section may be rt in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under Section 29." It is clear that clause (b) of sub-section (1) of Section 30 of the Code authorizes the Court to award imprisonment in default of fine up to 1/4th of the term of imprisonment which the Court is competent to inflict as punishment for the offence. However, considering the circumstances placed before us on behalf of the appellants-accused, viz., they are very poor and have to maintain their family, it was their first offence and if they fail to pay the amount of fine as per the order of the Additional Sessions Judge, they have to remain in jail for a period of 3 years in addition to the period of substantive sentence because of their inability to pay the fine, we are of the view that serious prejudice will be caused not only to them but also to their family members who are innocent. We are, therefore, of the view that ends of justice would be met if we order that in default of ::: Downloaded on - 01/09/2023 20:33:19 :::CIS 8 payment of fine of Rs.1.5 lakhs, the appellants shall undergo RI for 6 months instead of 3 years as ordered by the Additional Sessions Judge and confirmed by the High .
Court.
12 In Yasihey Yobin's case (supra), the Hon'ble Supreme Court considered the fact that accused No.1 therein was old and suffering from ailment and thus, the sentence was of modified as under:-
"16. Shri Altaf Ahmad, would submit that the Trial Court in course of its order has observed that Accused No. 1 is rt old and is suffering from several ailments and therefore requests for modification of the sentence ordered by the Trial Court and so confirmed by the High Court. We see merit in the submission made by the learned senior counsel. Keeping this aspect in view, we modify the sentence of Accused No.1 from 13 years to 10 years. However, insofar as the conviction of Accused No.2 is concerned, we are not inclined to grant any remission and accordingly confirm the judgment and order passed by the Trial Court and so confirmed by the High Court and maintain the fine imposed on him. We further direct that the appellants will surrender after six weeks to serve out the remaining period of sentence. Their bail bonds stands cancelled."
13 In Baldev Singh's case (supra), the appellant therein was found to be in possession of 13 quintals and 20 kg of poppy husk and the Hon'ble Supreme Court reduced the ::: Downloaded on - 01/09/2023 20:33:19 :::CIS 9 sentence from 12 years to 10 years by recording following reasons:
.
15. To assail the prosecution case, it was contended that Ram Singh- PW1's testimony cannot be relied upon as PW-1 has stated that he remained busy in the investigation in the present case for 7-8 hours but the fact that Ram Singh has been associated in the investigation of another FIR No.235 dated 17.09.1990 relating to Police of Station Sadar Dabwali at 5.30 a.m. in which one Bhoop Singh was arrested while carrying one kilogram and hundred grams opium, which according to the appellant, renders the presence of Ram Singh-ASI in the instant case rt highly doubtful. The learned Sessions Judge accepted the above submission of the appellant to hold that evidence of Ram Singh-ASI does not inspire confidence. As observed by the High Court, the learned Sessions Judge overlooked that there is no evidence as to the distance between the places of recovery in both the cases. As observed by the High Court, it has come on record that in both the FIRs the place of occurrence has been stated as "in the area of Village Kingre, at a distance of 18 K.M. towards the East, Deh.No.33". It appears from the above entry in the FIR, that the place of occurrence was the same for both the FIRs recorded on that night. The case relating to Bhoop Singh in FIR No.235 resulted in acquittal. Referring to the acquittal of Bhoop Singh, High Court observed that the same would warrant an inference that what is incorporated in FIR No.234 is incorrect and that defence has not been able to make any dent in the testimony of Ram Singh- ASI to discard his evidence as untrustworthy.
We find no reason to take a different view.
::: Downloaded on - 01/09/2023 20:33:19 :::CIS 1014 In Usman Shamshudeen Shekh's case (supra), a learned Division Bench of this Court by placing reliance on the .
judgment rendered by the Hon'ble Supreme Court in Shahejadkhan Mahebubkhan Pathan vs. State of Gujarat, (2013) 1 SCC 570, in a case relating to recovery of 1.9 kg charas reduced the sentence from 12 years to 10 years. It shall be apt to reproduce relevant observations as contained in of paras 42 to 45, which read as under:-
42. However we are in agreement with learned counsel rt for the accused that the sentence so imposed by the Court below is harsh and on the higher side. Contraband substance, so recovered was of commercial quantity weighing 1.9 kgs. The accused cannot be said to be a man of means. It is his first offence. We notice that both before the trial Court as also this Court, he stands represented by a Legal Aid Counsel, who undoubtedly have put in their best efforts.
43. The Hon'ble Supreme Court of India in Shahejadkhan Mahebubkhan Pathan v. State of Gujarat, (2013) 1 SCC 570, has held as under:
"12. It is clear and reiterated that the term of imprisonment in default of payment of fine is not a sentence. To put it clear, it is a penalty which a person incurs on account of non-payment of fine. On the other hand, if sentence is imposed, undoubtedly, an offender must undergo unless it is modified or varied in part or whole in the judicial proceedings. However, the imprisonment ordered in default of payment of fine ::: Downloaded on - 01/09/2023 20:33:19 :::CIS 11 stands on a different footing. When such default sentence is imposed, a person is required to undergo imprisonment either because he is unable to pay the .
amount of fine or refuses to pay such amount.
Accordingly, he can always avoid to undergo imprisonment in default of payment of fine by paying such an amount. In such circumstance, we are of the view that it is the duty of the Court to keep in view the nature of offence, circumstances in which it was of committed, the position of the offender and other relevant considerations such as pecuniary circumstances of the accused person as to character and magnitude of the offence rt before ordering the offender to suffer imprisonment in default of payment of fine. The provisions of Sections 63 to 70 of IPC make it clear that an amount of fine should not be harsh or excessive."
Similar view was taken by the apex Court in Shanti Lal v. State of H.P., 2007 (11) SCC 243.
44. It has not come on record that accused is a kingpin, regularly indulging in the trade of manufacture, supply or sale of narcotic substance.
45. While taking note of overall attending circumstances, we reduce the sentence of rigorous imprisonment, so imposed by the trial Court, from 12 years to ten years, being the minimum sentence so prescribed under the Act for an offence of this nature and also reduce the amount of fine from Rs.15,00,000/-
(fifteen lacs), so imposed by the trial Court, to `1,00,000/- (one lac). We direct that in the event of default in the payment of fine, the accused shall further undergo rigorous imprisonment for a period of one year.
::: Downloaded on - 01/09/2023 20:33:19 :::CIS 1215 In Pradeep Bachhar's case, the Hon'ble Supreme Court reduced the substantial sentence of the appellant therein .
from 12 years to 10 years, which earlier had been reduced by the High Court from 15 to 12 years. It shall be apt to reproduce relevant observations as contained in paras 2 to 4 of the judgment, which read as under:-
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2. The High Court reduced the sentence from 15 years to 12 years. The fine of Rs. 1,50,000/- was retained, but the default sentence was reduced to two years. When the rt matter came up before this Court, on 09.10.2017, notice was issued on the quantum of sentence.
3. A similar situation came up for consideration before this Court in Shahejadkhan Mahebubkhan Pathan Vs. State of Gujarat, reported in (2013) 1 SCC 570, whereby having regard to the financial and other social conditions of the convicted person, this Court reduced the substantial sentence to 10 years and the default sentence to six months. The relevant considerations are available at paragraphs 15 and 16 of the Judgment, which read as follows :-
"15. It is clear that clause (b) of sub-section 1 of Section 30 of the Code authorizes the court to award imprisonment in default of fine up to one-fourth of the term of imprisonment which the court is competent to inflict as punishment for the offence. However, considering the circumstances placed before us on behalf of the appellant-accused viz. they are very poor and have to maintain their family, it was their first offence and if they fail to pay the amount of ::: Downloaded on - 01/09/2023 20:33:19 :::CIS 13 fine as per the order of the Additional Sessions Judge, they have to remain in jail for a period of 3 years in addition to the period of substantive sentence because of .
their inability to pay the fine, we are of the view that serious prejudice will be caused not only to them but also to their family members who are innocent. We are, therefore, of the view that ends of justice would be met if we order that in default of payment of fine of Rs. 1.5 lakhs, the appellants shall undergo RI for 6 months of instead of 3 years as ordered by the Additional Sessions Judge and confirmed by the High Court.
16. For the reasons stated above, both the appeals are partly allowed. The conviction recorded is confirmed and rt sentence imposed upon the appellants to undergo RI for 15 years is modified to 10 years. The order of payment of fine of Rs. 1.5 lakhs each is also upheld but the order that in default of payment of fine, the appellants shall undergo RI for 3 years is reduced to RI for 6 months. Since the appellants have already served nearly 12 years in jail, we are of the view that as per the modified period of sentence in respect of default in payment of fine, there is no need for them to continue in prison. The appellants shall be set at liberty forthwith unless they are required in any other offence. It is further made clear that for any reasons, if the appellants have not completed the modified period of sentence, they will be released after the period indicated hereinabove is over."
4. Having heard the learned senior counsel appearing for the appellant and the learned counsel appearing for the State, on facts, we do not find any reason to take a different view. Accordingly, the appeal is allowed. The ::: Downloaded on - 01/09/2023 20:33:19 :::CIS 14 substantial sentence of the appellant is reduced to 10 years and the sentence in default on payment of fine is reduced to six months.
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16 Thus, it would be noticed from the aforesaid judgments that even though in cases involving much larger quantity of narcotic substance, the Hon'ble Supreme Court exercised its discretion while modifying the sentence.
of 17 However, this court cannot be oblivious to the judgment relied upon by the respondent-State in Gurdev Singh rt vs. State of Punjab (2021) 6 SCC 558, wherein the Hon'ble Supreme Court in paras 15 and 16 observed as under:
15. At this stage, the statement of objects and reasons for enactment of NDPS Act are required to be referred to.
Before the NDPS Act 1965 was enacted, the statutory control over narcotic drugs was exercised in India through number of Central and State enactments viz. --
The Opium Act, 1857, (b) the Opium Act, 1878 and (c) The Dangerous Drugs Act, 1930. However, with the passage of time and developments in the field of illicit drug traffic and drug abuse at national and international level it was noticed and found that
(i) The scheme of penalties under the aforesaid ACTS was not sufficiently deterrent to meet the challenge of well- organized gangs of smugglers;
(ii) The country has for the last few years been increasingly facing the problem of transit traffic of drugs ::: Downloaded on - 01/09/2023 20:33:19 :::CIS 15 coming mainly from the neighboring countries and destined mainly to Western countries;
(iii) During recent years new drugs of addiction which .
have come to be known as psychotropic substances have appeared on the scene and posed serious problems to national governments.
Therefore with a view to overcome the aforestated deficiencies the NDPS Act, 1985 came to be enacted. That thereafter to check the menace of dangerous drugs of flooding the market, Section 37 of the Act came to be amended and it has been provided that the accused of an offence under the Act shall not be released on bail during trial unless the mandatory conditions provided in rt Section 37 are satisfied.
16. While considering the submission on behalf of the accused on mitigating and aggravating circumstances and the request to take lenient view and not to impose the punishment higher than the minimum sentence provided under the Act it should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims who are vulnerable; it cause deleterious effects and deadly impact on the society; they are hazard to the society. Organized activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances shall lay to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace ::: Downloaded on - 01/09/2023 20:33:19 :::CIS 16 has assumed serious and alarming proportions in the recent years. Therefore, it has a deadly impact on the society as a whole. Therefore, while awarding the .
sentence/punishment in case of NDPS Act, the interest of the society as a whole is also required to be taken in consideration. Therefore, while striking balance between the mitigating and aggravating circumstances, public interest, impact on the society as a whole will always be tilt in favour of the suitable higher punishment. Therefore, of merely because the accused is a poor man and/or a carrier and/or is a sole bread earner cannot be such mitigating circumstances in favour of the accused while awarding the sentence/punishment in the case of NDPS rt Act. Even otherwise, in the present case, the Special Court, as observed hereinabove has taken into consideration the submission on behalf of the accused that he is a poor person; that he is sole bread earner, that it is his first offence, while not imposing the maximum punishment of 20 years R.I and imposing the punishment of 15 years R.I. only.
18 Having gone through the entire law on the subject, it needs to be noticed that in matters of sentence, the Court has been vested with vast discretion and for its proper exercise, mitigating and aggravating circumstances would normally be required to be kept in mind by the court.
19 Adverting to the facts of this case, it would be noticed that there is nothing on record to show that the ::: Downloaded on - 01/09/2023 20:33:19 :::CIS 17 appellant has any criminal antecedents or that he was involved in any investigation either under NDPS Act and or for that .
matter any other provisions of law. He is an agriculturist and was aged about 33-34 years on the date of commission of the offence. Nothing adverse has come on record with regard to his conduct during custody.
20 As regards ratio laid down in Gurdev Singh's case, of the same will not come in the way of this Court in exercise of its discretion as the facts in the said case were that the appellant rt therein was found to be in possession of 1 kg heroin for which commercial quantity is 250 grams and the learned Special Judge therein had awarded rigorous imprisonment for 15 years instead of 20 years maximum rigorous imprisonment. The appellant there was also found to be indulging in selling heroin. The only ground raised by the appellant for reduction of sentence was that he was poor person and first offender, therefore, the Hon'ble Supreme Court had observed that such factor cannot be considered for reduction of sentence.
21 In the present case, the petitioner was found to be in possession of 2.170 kg and commercial quantity whereof is more than 1 kg. The appellant has no criminal antecedents and as such is a first offender. Therefore, taking into consideration ::: Downloaded on - 01/09/2023 20:33:19 :::CIS 18 all the cumulative facts and circumstances, we deem it proper to reduce rigorous imprisonment of the appellant, as imposed .
by the learned Special Judge from 12 years to 10 years being minimum sentence so prescribed under the NDPS Act for the commission of offence, however at the same time, we deem it appropriate to enhance the fine amount from Rs.1,00,000/- to Rs.1,50,000/- and in default of payment of fine, to undergo of simple imprisonment for a period of 2 years. Ordered accordingly. rt 22 With the aforesaid modification of sentence part of the judgment of the learned Special Judge, the appeal is partly allowed and disposed of as such so also the pending application(s), if any.
(Tarlok Singh Chauhan) Judge (Ranjan Sharma) 31.8.2023 Judge (pankaj) ::: Downloaded on - 01/09/2023 20:33:19 :::CIS