Delhi District Court
State vs Giwa Kadeejat & Ors. on 16 November, 2017
IN THE COURT OF SH. RAJESH KUMAR SINGH
SPECIAL JUDGE;NDPS SOUTH DISTRICT, SAKET
Sessions Case No. 7540/2016
CNR No. DLST010005982012
FIR no. 114/2012
PS Crime Branch
u/s 21/29 of NDPS Act
State
versus
Sheetal ..........accused no. 1
w/o Sh. Rakesh Kumar
r/o H. No. R26, Khirki Extension,
Malviya Nagar, New Delhi
Rakesh Kumar Dahiya ..........accused no. 2
s/o Sh. Azad Singh Dahiya
r/o H. No. 190A, Shahpur Jat
New Delhi
Date of Judgment : 01st November 2017
Date of order on sentence : 16th November 2017
ORDER ON SENTENCE
1. Vide Judgment dated 01.11.2017, the accused Rakesh
Kumar Dhaiya has been held guilty and convicted u/s 25 and 29 of
NDPS Act. The accused Sheetal has been held guilty and convicted
State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 1 of 10
u/s 21 (b) and 29 of NDPS Act for purchasing and possessing 10
grams Cocaine (intermediate quantity) from the coaccused Giwa
Kadeejat, who absconded during trial. Proceedings u/s 82 Cr. PC
were completed against the accused Giwa Kadeejat. During trial, all
accused were admitted to bail. The convict Rakesh Kumar Dhaiya
and the convict Sheetal were again taken into custody on 01.11.2017
when the judgment was pronounced by my Ld. Predecessor.
2. Ld. Counsel for convict Rakesh Kumar Dhaiya and Ld.
Counsel for convict Sheetal have submitted their arguments on the
point of sentence. Ld. Addl. PP has also submitted his arguments on
the point of sentence.
3. It is submitted on behalf of convict Rakesh Kumar
Dhaiya that he is a person of young age and has roots in the society.
He has faced trial for about five years. He is permanent resident of
Delhi and there is no material on record to show that he is involved in
trade of prohibited substance. The quantity of the contraband in this
case is only 10 grams. Ld. Counsel further submitted that taking into
consideration the facts and circumstances of the case and the
background of the convict, the ends of justice would be met if the
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SC NO. 7540/2016 page 2 of 10
convict is sentenced for the period already undergone i.e. about three
months. Ld. Counsel also submitted that for the intermediate quantity
there is no minimum sentence prescribed and it is not necessary that
the sentence must be more than the maximum sentence prescribed
for the small quantity. It is also submitted that the offence u/s 25
NDPS Act is not made out against the convict Rakesh Kumar Dhaiya.
In support of his arguments, Ld. Counsel has relied upon order dated
16.12.2016 passed by Hon'ble Delhi High Court in Crl. A. 764/2014
titled as State (NCT of Delhi) vs Vinay Kumar. In this case, the
accused (respondent before Hon'ble High Court) was held guilty u/s
21 (b) NDPS Act by the Court of Ld. Special Judge, NDPS and he was sentenced for the period already undergone. Hon'ble High Court dismissed the Appeal of the State for enhancement of the sentence.
4. Ld. counsel for convict Sheetal has also argued on the same lines as the Ld. counsel for convict Rakesh Kumar Dhaiya. He has relied upon Judgment dated 11.03.2013 passed by Hon'ble Supreme Court in the matter of "Budh Singh vs State of Haryana and anr.", judgment dated 11.03.2008 passed by the Court of Ld. ASJ (NDPS) in SC 15/08 and judgment dated 09.07.2008 in SC State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 3 of 10 158/07. Ld. Counsel also submitted that the convict has been engaged recently and her marriage is scheduled shortly. Ld. Counsel for the convict Sheetal also submitted that lenient view should be taken and she may be sentenced only for the period already undergone.
5. Ld. Addl. PP submitted that the convicts are not so simple as they are being projected. The convict Rakesh Kumar Dhaiya had absconded from the spot and he could be apprehended after lot of efforts. The police had to make lot of efforts to collect the evidence and valuable judicial time has been consumed in bringing home the guilty of the convicts. Ld. Addl. PP has submitted that the judgments cited at Bar by Ld. Counsel for convicts do not apply to the facts of the present case and maximum sentence should be awarded to both convicts. Regarding the applicability of Section 25 NDPS Act against the convict Rakesh Kumar Dhaiya, it is submitted by Ld. Addl. PP that this objection was not taken at the time of framing of charges as well as during trial and this objection cannot be raised now at the time of arguments on sentence.
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6. I have considered the arguments of Ld. Addl. PP for State and the arguments of Ld. Counsel for both convicts.
7. Each case has to be decided on the basis of its own facts. We do not have before us the entire facts of the cases which have been cited at Bar by Ld. Counsel for the convicts. In the matter of State vs Vinay Kumar (supra), the convict admitted his guilt. FIR was registered in that case in 2012 and the matter was disposed of on 21.11.2013. Hon'ble High Court observed that the sentence awarded was somewhat on the lower side but considering the facts and circumstances of the case, refused to intervene in the Appeal. In the present case, the convicts did not admit their guilt. Extensive investigation was done and considerable judicial time has been consumed in the trial.
8. From the facts as mentioned in judgments cited at Bar by Ld. counsel for convict Sheetal also it can be inferred that facts of those cases are not same as that of the present case. Therefore, the judgments cited at Bar by Ld. counsel for the convicts do not help them.
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9. In the matter of State of UP vs Virendra Prasad (2004) 9 Supreme Court Cases 37 in Criminal Appeal No. 998 of 1997 decided on February 3, 2004 Hon'ble Supreme Court has explained the object of sentencing. This was the case of conviction u/s 302 IPC, however, the observations made by Hon'ble Supreme Court in paragraph 27 of judgment would apply to all criminal cases. The observations made by Hon'ble Supreme Court reads as:
"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."
10. Illicit use and trade of narcotic and psychotropic substances not only poses grave threat to the physical, financial and mental well being of individuals but it also affects their families as well as the society as a whole. It gives rise to other criminal activities including organized crime and it is also a threat to National security. State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 6 of 10
11. The quantity recovered may be 10% of the maximum quantity covered under the intermediate category but this will not determine the maximum sentence which should be awarded to the convicts in this case. We have to see their conduct and the other facts and circumstances of the case. The argument of ld. counsel for convict Rakesh Kumar Dhaiya that there is no evidence on record that he was involved in trade of contraband is negated by the testimony of Inspector Balwan Singh (PW18). The convict Rakesh Kumar Dhaiya was using the vehicle no DL8CT3159 which was used to commit the crime. He absconded from the spot. Though, he is resident of Delhi, he was staying in a rented accommodation with the convict Sheetal. The landlord Sh. Rakesh Gupta (PW7) has confirmed this fact and he has also disclosed that both convicts were living as husband and wife. The evidence on record clearly shows that the convict Sheetal was cahoots with the convict Rakesh Kumar Dhaiya. I am not ready to accept the arguments of ld. counsel for the convicts that they are simple people, who are caught in one stray incident. Regarding the argument of Ld. counsel for the convict Rakesh Kumar Dhaiya in respect of applicability of Section 25 NDPS State vs Giwa Kadeejat & ors.
SC NO. 7540/2016 page 7 of 10 Act, Ld. Addl. PP rightly submitted that this is not the stage to raise this issue. It is also to be noted that he permitted the convict Sheetal to use the vehicle for commission of the crime.
12. Considering the facts and circumstances of the case, the convicts do not deserve leniency. Adequate sentence needs to be imposed on both of them which should act as deterrent to them as well as to others, who may plan to indulge in similar criminal activities.
13. The convict Rakesh Kumar Dhaiya has been held guilty u/s 25 and 29 of NDPS Act. Section 25 NDPS Act provides punishment for allowing use of conveyance for commission of an offence under the Act. The conveyance was used for commission of offence u/s 21 (b) of NDPS Act and therefore, the punishment u/s 25 NDPS Act would be same as that u/s 21 (b) NDPS Act. Section 29 NDPS Act provides punishment for abetment and criminal conspiracy. Here also, the punishment would be same as that u/s 21 (b) NDPS Act.
14. The convict Sheetal has been held guilty u/s 21 (b) & 29 NDPS Act. For Section 29 NDPS Act, she also has to be awarded punishment as provided u/s 21 (b) NDPS Act.
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SC NO. 7540/2016 page 8 of 10
15. The punishment prescribed u/s 21 (b) NDPS Act is rigorous imprisonment which may extend to 10 years and fine which may extend to Rs. One lac.
The convicts are sentenced as under :
a) The convict Rakesh Kumar Dhaiya is sentenced to five years of rigorous imprisonment and further sentenced to pay a fine of Rs. 25,000/ in default to undergo RI for six months for the offence u/s 25 of the NDPS Act. He is further sentenced to five years of rigorous imprisonment and fine of Rs. 25,000/ in default to undergo RI for six months for the offence u/s 29 NDPS Act. Both the sentences shall run concurrently. Benefit of Section 428 Cr.P.C. be extended to the convict.
(b) The convict Sheetal is sentenced to five years of rigorous imprisonment and further sentenced to pay a fine of Rs. 25,000/ in default to undergo RI for six months for the offence u/s 21 (b) of the NDPS Act. She is further sentenced to five years of rigorous imprisonment and fine of Rs. 25,000/ in default to undergo RI for six months for the offence u/s 29 NDPS Act. Both the sentences shall run concurrently. Benefit of Section 428 Cr.P.C. be extended to the convict.
Both convicts have not paid fine.
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16. Case property be confiscated to State and disposed of as per law, after the expiry of the period of limitation for filing of the appeal or subject to the outcome of the appeal to be filed against this judgment, if any, or the orders of the Appellate Court, as the case may be.
17. Copy of the judgment and order on sentence be supplied to both the convicts, free of cost.
18. File be consigned to record room u/s 299 Cr. PC as accused Giwa Kadeejat is absconder.
(announced in the (Rajesh Kumar Singh) open Court on Special Judge (NDPS) 16th November 2017 ) South District: Saket State vs Giwa Kadeejat & ors. SC NO. 7540/2016 page 10 of 10