Ganesh Bahadur Bisht vs State of Uttarakhand

Hon''ble Servesh Kumar Gupta, J.—This jail appeal has been preferred against the judgment and order dated 26.2.2009/3.3.2009 passed by the Special Sessions Judge, Champawat, convicting the appellant/ accused Ganesh Bahadur Bisht for the offence of Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter will be called as the Act). The learned Judge has imposed the sentence of ten years'' R.I. in addition to Rs.1.00 lacs of fine upon the convict, and in default of the payment of fine, he was further sentenced to undergo one year''s additional imprisonment.

The convict/appellant was intercepted on 5.12.2006 by the police of Station Banbasa, which is a bordering police station of India and Nepal, and he was found having cannabis (CHARAS) upon the search of his person and this CHARAS was estimated to be about 1 kilogram in weight. The learned Sessions Judge was of the view that this quantity of CHARAS was a commercial one, attracting the punishment u/s 20 (C) of the Act.

Learned amicus curiae has not argued this appeal on merits but he has only prayed for reduction of the quantum of sentence in light of his arguments regarding the quantity of recovered contraband article, as assessed by the police party and accepted by the Sessions Judge.

The nabbing police personnel have assessed the recovered weight of cannabis from the convict/appellant as about 1 kilogram. The using of word ''about'' in the search/ recovery memo, by itself, is enough to say that they were not sure regarding the exact weight of the recovered contraband CHARAS. It was only on account of their bare estimation, which could have been wrong, making the exact quantity less than one kilogram. On the other side, it could have been even more than one kilogram. It is now a settled principle of law that where two possibilities are there, then the one favouring the culprit should be taken into estimation. All the more, where the question of curtailment of liberty of a person, forcing him to undergo the long term of imprisonment, which is prescribed for the commercial quantity, is involved, then this principle of interpretation should have been opted by the court. If the quantity is lesser than the commercial one, then Section 20 (B) of the Act envisages the quantum of punishment for ten years with fine of Rs.1.00 lacs, as a maximum. The learned Judge has specifically expressed her view that the quantity of the recovered contraband was one kilogram, so it was a commercial quantity, while the recovered article was not weighed in front of the learned Judge trying the matter nor it was weighed by the police personnel. Rather, it was just an estimation. So, in that case, there may be probability to a fair extent that the recovered article might have been of the lesser quantity than one kilogram. In that situation, it was quite unjustified to impose the maximum punishment of ten years'' term with Rs.1.00 lacs of fine, without any specific reason.

The convict/appellant has already been in gaol for more than five years by now. For the construction panoptically viewed by this Court, as above, this Court holds that the quantity, allegedly recovered from the possession of appellant Ganesh Bahadur Bisht, was greater than the small quantity and lesser than the commercial quantity, and that be the case, it was not justified to impose the maximum penalty envisaged under the Act. The same deserves to be reduced.

In the facts and circumstances of the case, the Court modifies the sentence imposed by learned Special Sessions Judge from 10 years'' imprisonment to five years while for Rs.1.00 lacs of fine, it is reduced to Rs.10,000/- and in default of payment of fine, the accused will undergo one month''s additional imprisonment. The period already under incarceration will be adjusted while reckoning the period of sentence, so modified by this Court.

Accordingly, the appeal is dismissed on merits while it is allowed on the quantum of sentence. Copy of this order be sent to the concerned jail forthwith for compliance.