Chakra Bahadur Shahi vs State of Uttarakhand.

Servesh Kumar Gupta, J.—This is a Jail Appeal, preferred by the convict Appellant Chakra Bahadur Shahi against the judgment and order dated 24.10.2008 rendered in Special Sessions Trial No. 8 of 2005 (State v. Chakra Bahadur Shahi). The offence, wherefore he was tried by the learned Sessions Judge, bearing crime No. 200 of 2005 u/s 8/20 Narcotic Drugs and Psychotropic Substances Act pertaining to police station Banbasa. The accused is resident of place Chandani, police station Gadda Chowki, District Kanchanpur, Nepal.

The facts are that on 30.09.2005 when the police party of Banbasa was patrolling in the territorial jurisdiction of the concerning police station, then they apprehended the accused Chakra Bahadur Shahi along with another co-accused at about 1.00 p.m. in the area which is adjacent to the border of Nepal. On being searched, cannabis (charas) nearly one kilogram was recovered from his possession, the recovery memo was made and FIR was lodged. After investigation, the chargesheet was submitted. The accused was tried and convicted by the learned Sessions Judge vide her judgment stated above. He was sentenced to 10 years rigorous imprisonment nay one lakh rupees of fine. In default of payment of fine, he was further sentenced to one year rigorous imprisonment.

The convict has sought mercy of this Court with the facts that his monetary condition is too weak to engage a lawyer for contesting the case. His wife is always remained under indisposition. He has small kids and being in caption, he is not capable to provide any medical treatment to his wife and his children had stopped going school and they are starving at their native place. He is so poor that he could not even move a bail application in the Court because there is No. person to look after his interest.

In the above circumstances, this Court appointed Sri A.M. Saklani as Amicus Curiae for the Appellant and has given hearing to the facts and other merits of the case.

Learned Amicus Curiae has argued that not a single prosecution paper discloses the recovery of exact one kilogram of cannabis from the Appellant. Everywhere there is a mention of the word "nearly" one kilogram and the interpretation of this word should go in favour of the accused Appellant. The learned Trial Court has been harsh enough to interpret this phrase "nearly one kilogram" to provide the exact meaning of one kilogram and has punished the Appellant u/s 20 (C) of the Act while he should have given the benefit of presumption that contraband article recovered from the accused Appellant might be even less than one kilogram. Had it been constructed so then the accused Appellant might have been punished u/s 20 (B) of the Narcotic Drugs and Psychotropic Substances Act, 1985. This provision of the Section 20 (B) of the Act gives the discretion to the Court to punish the offender for a term, which may extend to 10 years and with a fine, which may extend to one lakh rupees.

It has also been argued by the learned Amicus Curiae that even in the report as manifested in Exhibit A-10, a part of the recovered article weighing 100 grams was sent to the laboratory for testing the nature of the article and in the poly pack, nearly 75 gram was received in the laboratory. When this much of difference in the assessment of weighing is there on the part of the Government machinery then No. conclusiveness can be inferred regarding the weight of the recovered cannabis to the tune of exact one kilogram to attract the punitive provisions, as prescribed for the recovery of commercial quantity.

This Court do agree with the contention advanced by the learned Amicus Curiae and is of the view that in the above circumstances, the punishment awarded by the trial court to the Appellant Chakra Bahadur Shahi ought to be reduced. The appeal is partly allowed only on the question of sentence which is modified as under; The accused Appellant Chakra Bahadur Shahi is punished for the offence u/s 8/20 Narcotic Drugs and Psychotropic Substances Act and his sentence of 10 years rigorous imprisonment, is reduced to five years while the fine of rupees one lakh is reduced to Rs. 25,000/-. In default of payment of fine, he will further go one year rigorous imprisonment. Period of caption, which he has already undergone will be adjusted towards the sentence as awarded by this Court. On merit the appeal is dismissed.

Let the copy of this judgment be sent to the court below as well as to the Superintendent, District Jail, Dehradun for compliance.