Deo Narain Gupta vs State of U.P.

Mohammad Tahir, J.—1. This criminal appeal has been filed against the judgment and order dated 7.8.2009 passed by Ist Additional Sessions Judge, F.T.C.-I Siddharth Nagar in S.S.T. No. 47 of 2007, (State v. Deo Narain Gupta), arising out of Case Crime No. 235/2007, whereby the accused appellant has been convicted under Section 20(b)(ii)(c) of the N.D.P.S. Act and sentenced to undergo 12 years rigorous imprisonment and fine of Rs. 1,20,000/-. It was also directed that in default of payment of fine the accused appellant shall further undergo 2 years rigorous imprisonment.

The prosecution case, in brief, is that on 27.6.2007 S.O. Jagdeep Dubey of P.S. Mishrauliya District Siddharth Nagar along with other police personnel was busy in checking in his area. When he reached near the crossing of Khadsari, an informer informed him that one person would come from the side of Kathela by bicycle. He had charas with him. So if prompt action is taken he may be arrested. Upon this information, the S.O. and the other police personnel reached near the garden of Bismillah and had concealed themselves by taking cover of Shisham tree and started to wait the coming of that person. After some time one person was spotted by the police party coming from the side of Khatela on a bicycle. After pointing out towards that person, the informer had gone from there. When that person reached on the Kachcha rasta, he was surrounded and arrested by the police. On being asked his name, he told his name Deo Narain Gupta (accused appellant) belonging to Nepal. When he was asked about the luggage in the Bora which was kept on the carrier of the bicycle, he told that this Bora contained charas. On being further asked as to whether he would like to be searched before any Magistrate or before any Gazetted Officer, he begged pardon. The C.O. Etawah was informed by CUG number. On the information, C.O. Nihal Prasad along with witnesses Israr Ahmad and Noor Mohammad reached the spot. On personal search of the accused, Rs. 495/- were recovered from his pocket. The Bora which was kept on the carrier of the bicycle was got down to the ground and opened. From this Bora, 22 kg and 500 gm charas in pieces was recovered. The licence of keeping that charas was demanded but the accused could not show any licence for having the same. The said contraband was taken into custody at 12.30 p.m. and a sample of 100 gm was taken out from that charas. The sample and the residuary charas were sealed on the spot. The recovery memo was prepared on the spot. The copy of the recovery memo was given to the accused Deo Narain Gupta and on the basis of that recovery memo (Ext. Ka.1), a case at crime No. 235/07 was got registered under Section 8/20 of the NDPS Act in P.S. Mishrauliya of district Siddharth Nagar. The G.D. regarding registration of that case is Ext. Ka.7.

After completing the investigation of the case, charge sheet (Ext. Ka.10) under Section 8/20 of the NDPS Act was filed in the court of Sessions Judge against accused Deo Narain Gupta, whereupon cognizance was taken and thereafter this case was transferred to the court of Additional Sessions Court, F.T.C.-I, Siddharth Nagar.

The trial court framed the charge against accused appellant under Section 20(b)(ii)(c) of the NDPS Act. The charge was read over and explained to the accused. The accused appellant denied the charge and claimed to be tried.

The prosecution in order to prove its case examined S.I. Jagdeep Dubey as PW-1, Constable C.P.257 Dhirendra Rai as PW-2, Head Moharrir Ram Dayal as PW-3, Constable C.P.126 Lal Chandra Yadav as PW-4, S.I. Abdul Ahmad Khan as PW-5, Bhawani Prasad Upadhyay as PW-6 and Pairokar Constable 203 Jagram Sharma as PW-7.

The accused appellant in his statement recorded under Section 313 Cr.P.C. has denied the recovery of charas from his possession and he has further stated that he has been falsely implicated in this case.

The learned trial court after perusing and analyzing the evidence on record and hearing the counsel for both the parties convicted and sentenced the accused appellant Deo Narain Gupta as hereinbefore mentioned in the beginning of the judgment.

Aggrieved by the impugned judgment and order, the accused appellant has preferred this appeal before this Court.

I have heard Sri N.D. Rai and Sri Praveen Kumar Srivastava learned counsel for the appellant, learned AGA for the State and perused the record.

Learned counsel for the appellant has submitted that he does not want to argue this appeal on merit and he wants to confine his argument only on the point of quantum of punishment.

Learned counsel for the appellant has submitted that the learned trial court has not given cogent reasons and also has not considered the provisions of Section 32-B of the NDPS Act in awarding the sentence of 12 years rigorous imprisonment and fine of Rs. 1,20,000/-. He has further submitted that the appellant belongs to a very poor background and presently his family consists of one brother, Bhabhi and nephew and there is one small Kirana shop of his brother which is operated by his Bhabhi and nephew and there is no other source of income; that the age of the appellant is about 59 years and there is no criminal history to his credit except the present case and that the appellant is in jail since the very beginning i.e. 27.6.2007, thus he has suffered incarceration of 8 years, 8 months and 13 days in jail. So the accused appellants should be released on the basis of the imprisonment already undergone by him.

On the other hand, learned AGA for the State has submitted that 22 kg and 500 gm charas has been recovered from the possession of the accused appellant and it is a commercial quantity. So the act of the accused appellant was against the main stream of the society and against the interest of the Nation. So there is no ground to reduce the sentence of the accused appellant awarded to him by the trial court.

I have considered the rival submissions of learned counsel for both the parties.

First of all, I would like to refer Section 32-B of the NDPS Act which reads as under:--

"32B. Factors to be taken into account for imposing higher than the minimum punishment- Where a minimum term of imprisonment or amount of fine is prescribed for any offence committed under this Act, the court may, in addition to such factors as it may deem fit, take into account the following factors for imposing a punishment higher than the minimum term of imprisonment or amount of fine, namely:--

(a) The use or threat of use of violence or arms by the offender;

(b) The fact that the offender holds a public office and that he has taken advantage of that office in committing the offence;

(c) The fact that the minors are affected by the offence or the minors are used for the commission of an offence;

(d) The fact that the offence is committed in an educational institution or social service facility or in the immediate vicinity of such institution or faculty or in other place to which school children and students resort for educational, sports and social activities;

(e) The fact that the offender belongs to organised international or any other criminal group which is involved in the commission of the offence; and

(f) the fact that the offender is involved in other illegal activities facilitated by commission of the offence."

The above Section 32-B of the NDPS Act has been added and made effective from 2.10.2001. The incident in question took place on 27.6.2007 and the impugned judgment was pronounced by the trial court on 7.8.2009. So Section 32-B of the NDPS Act is fully applicable in the case at hand as has been held by the Apex Court in the case of Jawahar Singh v. State (NCT of Delhi), , (2009) 6 SCC 490.

The trial court has awarded the sentence of 12 years'' rigorous imprisonment and fine of Rs. 1,20,000/- to the accused appellant under Section 20(b)(ii)(c) of the NDPS Act on the ground that huge quantity of charas has been recovered from the possession of the accused appellant; that according to the supplementary affidavit filed on behalf of the accused appellant, he belongs to a very poor family and presently his family consists of one brother, Bhabhi and nephew and there is one small Kirana shop of his brother which is operated by his Bhabhi and nephew and there is no other source of income, so the accused appellant appears to be a poor fellow; that he has been ordered to undergo 2 years further rigorous imprisonment in default of payment of fine, which appears to be very harsh in view of his economic condition and that there is nothing on record to show that the accused appellant is a previous convict or has any bad antecedents or his offence lies in any of the clauses (a) to (f) of Section 32-B of the NDPS Act hereinbefore mentioned. So, regard being had to all the facts and circumstances of the case and the financial condition of the accused appellant, I think that reduction of 2 years rigorous imprisonment in default of payment of fine of Rs. 1,20,000/- to the simple imprisonment of 6 months and reduction of 12 years substantive rigorous imprisonment to minimum sentence of 10 years rigorous imprisonment would meet the ends of justice.

In view of the above, the appeal is partly allowed. The conviction of the accused appellant under Section 20(b)(ii)(c) of the NDPS Act is maintained but the sentence of 12 years'' rigorous imprisonment awarded to the accused appellant is reduced to 10 years rigorous imprisonment. The sentence of fine of Rs. 1,20,000/- awarded to the accused appellant is maintained. But in default of payment of fine, the sentence of 2 years rigorous imprisonment is reduced to 6 months simple imprisonment.

Accused appellant Deo Narain Gupta is in jail. He shall be released on completion of modified substantive sentence of rigorous imprisonment of 10 years and on completion of modified sentence of 6 months simple imprisonment if he does not pay the awarded amount of fine of Rs. 1,20,000/-.

The case property relating to this case shall be disposed of as per the direction given by the trial court in the impugned judgment.

Lower court record be sent to the lower court concerned along with the copy of this judgment to do the needful.

Certified copy of this judgment be also supplied to the counsel for the accused appellant without any delay.