Madhya Pradesh High Court
Yakub vs The State Of Madhya Pradesh on 4 April, 2019
1
HIGH COURT OF MADHYA PRADESH: BENCH:INDORE
(SINGLE BENCH: HON.MR.JUSTICE PRAKASH
SHRIVASTAVA)
CRIMINAL APPEAL NO.803/2012
(Yakub Vs. State of M.P.)
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Ms. Mehul Shukla, learned counsel for appellant. Shri. Nishit Wishard, learned counsel for respondent/State.
------------------------------------------------------------------------------------- Whether approved for reporting JUDG MENT (Delivered on 04th April, 2019) This appeal u/S.374 of the Cr.P.C at the instance of the appellant is directed against the judgment dated 12/12/2011 passed by the Special Judge (NDPS Act), Indore in ST No.10/2010 whereby the appellant has been convicted for offence u/S.8/18-(B) of the NDPS Act and sentenced to 10 years R.I with fine of Rs.1,00,000/- and default imprisonment of 2 ½ years, in case of non deposit of the fine amount. [2] The prosecution case is that on 13/3/2010, an intimation was received by the Assistant Sub Inspector of Police Narendrasingh Bhadoriya in the P.S. Khajrana that a dark complexed person with beard wearing blue shirt pant aged about 50 years with a black bag having opium was waiting near rickshaw stand at Khajrana ring road crossing. ASI Bhadoriya had made an entry in the rojnamcha and had prepared the Digitally signed by Varghese Mathew Date: 05/04/2019 18:40:39 2 panchnama in the presence of constable Satyendra and Chandrashekhar and since sufficient time was not there to obtain search warrant he also prepared the panchnama in this regard and had reached the spot and had intercepted the person i.e. the appellant with the above description on the spot. He was informed about his right of search u/S.50 of the Act and after his written consent, ASI Bhadoriya had taken his search and from his body no objectionable substance was found, but on taking the search of the bag which he was carrying, substance like opium in a polythene bag was found which after smelling was confirmed to be opium. Accordingly, the panchnama was prepared. The weight of the contraband item was taken and it was found to be 03 kg 100 gm and two samples of 50 gm each were taken in a packet and sealed and contraband item was also sealed and the appellant was arrested and offence u/S.8/18 of the NDPS Act was registered, spot map was prepared and the sample was sent to the FSL, Bhopal. In the FSL report, the seized item was found to be opium, hence after completing the investigation, challan was filed against the appellant for commission of offence u/S.8/18 of the NDPS Act. [3] The appellant had abjured the guilt and accordingly the trial had taken place in which the appellant has been convicted and sentenced in the manner stated above.
[4] Learned counsel for appellant submits that there is non Digitally signed by Varghese Mathew Date: 05/04/2019 18:40:39 3 compliance of the provisions contained in Secs.42 and 50 of the NDPS Act, therefore, the entire trial is vitiated. She has alternatively submitted that the sentence awarded to the appellant be reduced in the circumstances of the case. [5] The prayer has been opposed by the learned counsel for State.
[6] Having heard the learned counsel for parties and on perusal of the record, it is noticed that the trial court while convicting the appellant has duly taken note of the entire evidence on record.
[7] PW.8 Narendrasingh Bhadoriya has given the description of the step by step procedure which was followed in the matter. He has stated that on receipt of the information, the rojnamcha entry in rojnamcha sanha No.918 Ex.P/17 was made and mukbir panchnama Ex.P/18 was prepared and since it was not possible to obtain the search warrant, therefore, the panchnama Ex.P/19 was prepared and a copy of mukbir panchnama rojnamcha was sent to the CSP, Vijay Nagar vide Ex.P/16 through the constable Narendra and Narendra had come back after delivery of mukbir soochna rojnamcha and the entry of this was made in rojnamcha No.922 Ex.P/22. His statement also discloses that the necessary entries were made for calling the weighing scale and the person for weighment. On reaching the spot, on the basis of the description received in the intimation Digitally signed by Varghese Mathew Date: 05/04/2019 18:40:39 4 the appellant was spotted and he was informed about his right u/S.50 of the NDPS Act by disclosing that he can get the search done through the gazette officer or the Magistrate. Ex.P/2 is the written notice which was given to the appellant in terms of Sec.50 and Ex.P/3 is the written consent of the appellant for his search by PW.8 Narendra Singh Bhadoriya. In the search, from the black bag which the appellant was carrying, the contraband item opium was recovered, a panchnama of which Ex.P/5 was prepared and vide Ex.P/6 panchnama it was found to be opium and Ex.P/7 and P/8 are relating to the weighment of the contraband item. Ex.P/9 is the panchnama of mixing the contraband item, Ex.P/10 is the sample sealed panchnama, Ex.P/11 is the panchnama of two samples of 50 gms and Ex.P/12 is the seizure memo, Ex.P/27 is the spot map. The entry relating to bringing the accused along with the contraband item in the police station is contained in the rojnamcha sanha Ex.P/28. The seized contraband item is of more than the commercial quantity.
[8] PW.4 Chandrashekhar had brought the weighing scale, the weights and the person for weighment and has proved it. He has also stated that PW.9 Chandarsingh was sent to bring the witnesses who had brought Prahlad and Kamal. PW.7 Narendrasingh Kushwaha had proved the fact relating to giving the copy of mukbir soochna in the CSP Office. PW.2 Anukool Digitally signed by Varghese Mathew Date: 05/04/2019 18:40:39 5 was the person who had come with the scale and the weights and weighed the contraband item, has proved this fact and had also identified the appellant in the court. PW.5 P.S.Rathore Police Inspector, PW.7 Narendrasingh Kushwaha, Constable, PW.4 Chandrashekhar, Constable and PW.9 Chandersingh, Constable had supported the version of PW.8 Narendrasingh Bhadoriya in respect of compliance of Sec.50 of the Act and informing the appellant about his right to search through a gazette officer or a Magistrate. They have also proved the seizure of the contraband item from the appellant. PW.1 Kamal who is an independent witness has admitted his signature in Ex.P/1 to P/13, therefore, his statement also corroborates the statement of PW.8 about compliance of Sec.50 of the Act. [9] PW.12 Head Constable Maheshchandra has proved the fact of depositing of the contraband item in the police station Khajrana vide Ex.P/35. PW.3 Tulsiram had sent the sample of the contraband item to the FSL vide receipt Ex.P/14. In FSL report Ex.P/32 the seized item has been found to be opinion, a contraband item.
[10] Learned counsel for appellant has placed reliance upon the judgment of the Supreme Court in the matter of State of Punjab Vs. Balbir Singh AIR 1994 SC 1872, Vijaysingh Chandubha Jadeja Vs. State of Gujarat (2011) 1 SCC 609 and Arif Khan @ Agha Khan Vs. State of Uttarakhand AIR 2018 Digitally signed by Varghese Mathew Date: 05/04/2019 18:40:39 6 SC 2123 in support of her submission that the provision contained in Sec.50 of the NDPS Act are mandatory in nature and non compliance thereof will vitiate the trial, but in the present case the provisions of Sec.50 has been duly complied with as is clear from Ex.P/2 and P/3 as also the statement of PW.8 N.S.Bhadoriya as supported by the statement of PW.5 P.S.Rathore, PW.7 Narendrasingh Kushwaha, PW.4 Chandrashekhar, PW.9 Chandarsingh and PW.1 Kamal. Siarly the aforesaid analysis clearly reveals that the provisions contained u/S.42 of the Act was also duly complied with. Hence, I am of the opinion that the learned Special Judge has committed no error in convicting the appellant for offence u/S.8/18-(B) of the NDPS Act.
[11] So far as the issue of sentence is concerned, the appellant has been awarded the minimum sentence of 10 years and the minimum fine of Rs.1,00,000/- has been levied, hence no case for interference in this regard is required, however, the default sentence of 2 ½ years which has been awarded is on the higher side.
[12] The Supreme Court in the matter of Shahejadkhan Mahebubkhan Pathan Vs. State of Gujrat 2013 (1) SCC 570, the Hon'ble Supreme Court, finding the appellants to be first time offenders, very poor and maintaining their family has held that the default sentence of 3 years RI would cause serious Digitally signed by Varghese Mathew Date: 05/04/2019 18:40:39 7 prejudice to the appellants as well as their family members, hence, reduced it to 6 months RI. While holding so, the Supreme Court has held that the default sentence is not in a nature of sentence but only a penalty, therefore, it should not be harsh or excessive save in exceptional cases, where substantial terms of imprisonment is imposed. It has further been held that the Courts are required to take into consideration relevant circumstances regarding offence and offender and imposition of a long default sentence on penurious offenders may be harsh and excessive.
[13] In the matter of Shanti Lal Vs. State of M.P 2008 (1) MPHT 1, Hon'ble Supreme Court has considered the legal position and has held that; even in the absence of specific provision in NDPS Act empowering a Court to order imprisonment in default of payment of fine, such power is implicit and is possessed by a Court adminstering criminal justice but in that case, considering the circumstances of that case, the default sentence of 3 years was reduced to 6 months. In the matter of Shanti Lal (supra) it has further been held that the term of imprisonment in default of payment of fine is not a sentence, therefore, it stands on a different footing and that since the convict can always avoid undergoing imprisonment on payment of fine, therefore, the court has the duty to keep in view the nature of offence, circumstances under which it was committed Digitally signed by Varghese Mathew Date: 05/04/2019 18:40:39 8 and the position of the offender as also the other relevant consideration before ordering the offender to suffer imprisonment in default of payment of fine.
[14] Similarly, this Court also in criminal appeal No.1046/2011 in the case of Manish Maan Vs. Union of India vide order dated 21/10/2013 following the judgment of the Supreme Court in the case of Shanti Lal (supra), partly allowed the appeal, reducing the sentence as also the default sentence. [15] Hence, the appeal is partly allowed by maintaining the conviction, substantive sentence and fine awarded by the trial court, but reducing the default sentence from 2 ½ years to six months which the appellant will undergo in addition to the substantive sentence in case if he fails to deposit the fine amount.
(Prakash Shrivastava) JUDGE VM Digitally signed by Varghese Mathew Date: 05/04/2019 18:40:39