CRMPM/1500/2019 on 23 August, 2019

[Cites 7, Cited by 0]

Himachal Pradesh High Court

CRMPM/1500/2019 on 23 August, 2019

23.08.2019 Present: Mr. Ashwani K. Sharma & Mr. Nand Lal Thakur, Additional Advocate Generals and Mr. Kuldeep Chand, Deputy Advocate General for the petitioner/State. A perusal of the impugned judgment dated 1.4.2019, reveals that the quantity of total bulk, was 404 grams of Charas. Under Section 20 of the Narcotic Drugs sentence and which Psychotropic can be Substances imposed for Act, (hereinafter referred to as 'the NDPS Act'), maximum 1985 possessing intermediate quantity of Charas i.e. greater than 100 grams and less than 1Kg, may extend up to 10 years.

2. Under the 'The High Court of Himachal Pradesh (Appellate Side) Rules, 1997 (from now on referred to as 'the Rules'), the matters where imprisonment can extend up to 10 years, are to be heard by a Division Bench and not by Single Bench.

3. Rule 3 deals with the matters to be heard by a Bench of two Judges. Rule 3 (ii) is relevant for the present order and it is extracted as under:-

"a case coming before the Court in the exercise of its extraordinary original criminal jurisdiction (including a case under Article 226 of the Constitution of India)."

Rule 4 reads as follows:-

"All cases to be disposed of by a Bench of two or more Judges save as provided by law or these rules.- Save as provided by law or by these rules, all cases shall be heard and ::: Downloaded on - 29/09/2019 02:34:46 :::HCHP disposed of by a Bench of two or more Judges."

4. Chapter 2 of these Rules deals with the jurisdiction of a Single Judge and of Benches of the Court. The relevant portion of Rule 1 is extracted herein below:-

"Cases ordinarily to be heard by Single Judge.- Subject to the provisions hereinafter set forth the following classes of cases shall ordinarily be heard and disposed of by a Judge sitting alone:-

r Chapter 2 (1) (xi):- "An appeal, petition or reference under the Code of Criminal Procedure, 1973 other than- (emphasis supplied)

(a) an appeal or reference or a petition for enhancement of sentence in a case in which a sentence of death or of imprisonment for life has been passed;

(aa) an application under Section 378 of the Code of Criminal Procedure, 1973 for the grant of Special leave to appeal from an order of acquittal in respect of offences punishable with imprisonment of 10 years or more;

(b) an appeal under Section 378 of the Code from an order of acquittal in respect of offences punishable with imprisonment for 10 years or more;

(c) a case in which notice has been issued to a convicted person who has been sentenced to imprisonment for a term of ten years or more to show cause why the sentence should not be enhanced;

(d) a case in which notice has been issued to a convicted person requiring him to show cause why his conviction should not be altered ::: Downloaded on - 29/09/2019 02:34:46 :::HCHP to one of any offence punishable only with death or imprisonment for life;

.

(e) an appeal by the accused against the conviction where the imprisonment awarded is 10 years or more:

Provided that a Judge may, if he thinks fit, refer any matter mentioned in any of the clauses of this rule or any question arising therein, to a Divisional Bench, with the approval of the Chief Justice."

                r               to
            When Chapter 2 of the Rules                are read in its

entirety then it is clear that in every situation where the sentence can be ten years, then such matter has to be heard by a Division Bench. However, the Rules do not deal with Section 377 Cr.PC which provides for enhancement of sentence. Now if this Court proposes to enhance the sentence to a maximum of ten years, then it is competent to do so under Section 20(b)(ii) (B) of the NDPS Act. Now it would be dichotomy that in all the provisions, when imprisonment of ten years can be imposed, then such matters are to be heard by a Division Bench but if it is an appeal for enhancement of sentence which can also extend up to ten years, then it should be heard by a Single Bench. To deal with this situation the Rules have a proviso clause, which is reproduced as under:

"Provided that a Judge may, if he thinks fit, refer any matter mentioned in any of the clauses of this rule or any question arising therein, to a Divisional Bench, with the approval of the Chief Justice."

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It is a fit case where this Court thinks it appropriate to advert to the proviso clause, to bring symmetry in .

hearing the matters, which provide for identical sentence.

6. The quantity involved in the present case is the intermediate quantity. As already noticed above, Section 20 of the NDPS Act, provides punishment for possessing intermediate quantity and Section 20(b)(ii) (B), provides for the sentence for a term which may extend up to ten years. There is no assumption that ten years sentence, which is the maximum shall never be pronounced.

Therefore, put up before Hon'ble the Chief Justice for appropriate orders.







                                                                  (Anoop
    Chitkara)
                                                          Judge





    August 23, 2019    (KS)




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