Bhola vs State of Punjab

Jitendra Chauhan, J.

This appeal is directed against the judgment of conviction and the order of sentence dated 15.10.2003, passed by the Court of Special Judge, Patiala, vide which the accused/appellant Bhola, was convicted for the offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as ''the Act'') and sentenced him to undergo rigorous imprisonment for a period of five months, and to pay a fine of Rs. 100/- or in default of payment thereof, to further undergo RI for ten days.

The prosecution case against the appellant is that on 08.09.2001, the appellant was apprehended while he was having in his possession a gunny bag containing 25 kg of poppy husk, without any permit or licence.

On commitment, the accused was charged under Section 15 of the Act, to which the accused/appellant pleaded not guilty and claimed trial.

In support of the case of prosecution, it examined PW-1 SI Surjit Singh; PW-2 HC Sahib Singh; PW-3 Constable Harbans Singh; PW-4 SI Amarjit Singh and PW-5 HC Gurmit Singh.

The statement of the accused under Section 313 Cr.P.C., was recorded. He pleaded innocence and alleged false implication but did not lead any evidence, in his defence.

After hearing the Public Prosecutor for the State, the Counsel for the accused, and after going through the evidence, on record, the trial Court convicted and sentenced the accused/appellant, as stated hereinbefore.

Feeling aggrieved against the judgment of conviction and the order of sentence passed by the Trial Court, the instant appeal was filed by the accused/appellant which was admitted on 03.11.2003. The sentence of accused/appellant was suspended on the same day.

The learned counsel for the appellant does not press the appeal on merits and has submitted that the appellant who is sole bread winner of the family and a first offender, has already undergone 2 months out of substantive sentence of five months. Thus, the learned counsel prays for a lenient view on the quantum of sentence imposed by the trial Court.

On the other hand, the learned State counsel opposed the prayer of appellant/accused.

This Court has heard the arguments of the learned counsel for the appellant as also of the learned State counsel and has carefully gone through the record of the case.

The prosecution case is fully proved by the statement of SI Surjit Singh PW-1, which has been fully corroborated by PW-2 HC Sahib Singh. The testimonies of Constable Harbans, PW-3, SI Amarjit Singh, PW-4 and PW-5 Gurmit Singh has proved the link evidence of the prosecution. There is no flaw in the unassailed judgment of conviction. There is no merit in this appeal which is dismissed on merits.

In Ramakant Gopalsaran Shahu v. State of Gujarat 2005(3) RCR (Criminal) 204, it is held as under:--

"9. In the case before us, since the contraband article recovered from the house of the appellant weighing 1 Kg. and 300 gms. is neither a small quantity nor a commercial quantity but less than commercial quantity and more than small quantity, Sec. 20(b)(ii)(B) has to be kept in mind. This means that proportion of sentence in relation to quantity has to be maintained by the Court. If the trial court fails to maintain the proportion and award sentence regardless of quantity recovered, there would be disparity in the sentence awarded. Since the quantity recovered from the present appellant is only 300 gms. more than the small quantity and 19 kgs. less than the commercial quantity, the sentence prescribed may extent to 10 years. However, merely because the sentence prescribed by the legislature may extent to 10 years, it should not ordinarily be awarded by the trial court for the aforesaid period but for a period keeping in mind the quantity of contraband substance recovered. In the present case, the trial court has awarded R.I. of 10 years with a fine of Rs. 1,00,000/- which appears to be unjust, improper and disproportionate. Besides, the trial court has not exercised its discretionary power while awarding alternative sentence also. In default of payment of fine, it has awarded five years R.I. Hence, we are of the opinion that even for fine also, same proportion is required to be maintained."

The appellant has suffered agony of criminal trial. It is one of the mitigating circumstance to treat him leniently. The appellant is stated to be a first time offender. He has already undergone 2 months sentence, out of the substantive sentence of five months. In view of the above, the prayer made on behalf of the appellant is accepted. The sentence awarded to the appellant is ordered to be reduced to the period already undergone.

Ordered accordingly.

However, the fine is enhanced to Rs. 15,000/- to be paid within 60 days after the receipt of certified copy of the order. It is made clear that if the enhanced amount of fine is not paid within the stipulated period, the present appeal shall be deemed to be dismissed without notice.