Harjinder Singh @ Jinda vs State

S.P. Garg, J.—The appellant-Harjinder Singh @ Jinda challenges correctness of the judgment dated 26.04.2011 in Sessions Case No. 105/2006 arising out of FIR No. 43/2003 PS Sarai Rohilla Railway Station by which he was convicted for committing offences punishable u/s 29/21(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as ''NDPS Act''). Vide an order dated 12.05.2011, he was sentenced to undergo RI for 20 years with fine Rs. 2 lacs for each offence. Raj Kumar Mehta, Pradeep Kumar Chawla @ Chhottu, Harjinder Singh @ Jinda (the appellant herein), Inder Singh, Mohd. Hanif and Harley were charge-sheeted under Sections 21/23/24/29 of NDPS Act on the allegations that on or before 20.09.2003, they entered into a criminal conspiracy to possess heroin illegally and unlawfully. It was further alleged that pursuant to the said conspiracy Pradeep Kumar Chawla was found in possession of 2 kilograms heroin. On 20.09.2003, ACP Ravi Shanker of Inter State Crime Cell got information that Raj Kumar Mehta was smuggling smack from Pakistan and was supplying it to other countries through his local and foreigner conduits. A specific information was received by ACP Ravi Shanker that on 20.09.2003 at about 01.00 P.M. Raj Kumar Mehta would come at Sarai Rohilla Railway Station to deliver smack to an associate. A raiding party was organised. At around 01.10 P.M., Raj Kumar Mehta was seen coming from platform No. 1, Sarai Rohilla Railway Station. He stood near a toilet which was under construction. Pradeep Kumar Chawla came and shook hands with him. Raj Kumar Mehta exchanged the green bag in his possession with the packet in possession of Pradeep Kumar Chawla. They were apprehended. The green bag recovered from Pradeep Kumar Chawla contained two packets of smack each weighting 1 Kilogram. The packet recovered from Raj Kumar Mehta contained 23,000 US Dollars. Necessary proceedings were conducted and First Information Report was lodged. Pursuant to Raj Kumar Mehta''s disclosure statement, Harjinder Singh @ Jinda and Inder Singh were apprehended around 06.00 P.M. near Gol Dak Ghar. Inder Singh was found in possession of one kilogram smack. At that time, Harjinder Singh @ Jinda was sitting at the driver-seat of Indica Car bearing No. HR-38-FT-9720 and at his instance the sweet box containing one kilogram smack was recovered from the dicky of the car. Subsequently, Mohd. Hanif, a Pak national, was apprehended at 09.00 P.M. from outside House No. H-3/45 in Sector-11, Rohini and at his instance 2 kilograms and 50 grams smack kept in a tube and concealed underground near Japani Park was recovered. Pursuant to Harjinder Singh @ Jinda''s disclosure statement, Harley was apprehended on 22.09.2003 at about 01.00 P.M. from Munirka T-Point at Nelson Mandela Road near JNU and 300 grams smack was recovered from his possession. During investigation, two mobile phones from Pradeep Kumar Chawla and two mobile phones and four SIM cards from Harjinder Singh @ Jinda were recovered. Call details record revealed that all the accused persons were connected with each other. The samples of contraband were sent to Central Forensic Science Laboratory (CFSL), and as per its report, these contained Diacetylmorphine (heroin). Statements of the witnesses conversant with the facts were recorded. After completion of the investigation all of them were charge-sheeted. The prosecution examined seventeen witnesses to substantiate the charges. In their 313 Cr.P.C. statements, the accused pleaded false implication. They examined six witnesses in defence. On appreciating the evidence and after considering the rival contentions of the parties, the Trial Court, by the impugned judgment, convicted all the accused persons named above u/s 29 of NDPS Act and sentenced them to undergo RI for 20 years with fine Rs. 2 lacs each. Pradeep Kumar Chawla, Harjinder Singh @ Jinda and Mohd. Hanif were further sentenced to undergo RI for 20 years with fine Rs. 2 lacs each for committing offence u/s 21(c) of NDPS Act. Inder Singh and Harley were further sentenced to undergo RI for 15 years with fine Rs. 1.5 lacs and RI for 10 years with fine Rs. 1 lac respectively for committing offence u/s 21(b) of NDPS Act. All the sentences were directed to operate concurrently. Convicts were given benefit u/s 428 Cr.P.C.

During the course of arguments, learned counsel for the appellant on instructions from Harjinder Singh @ Jinda stated that he (the appellant) has opted not to challenge the conviction u/s 29/21(c) of NDPS Act. He however, prayed to take lenient view and reduce the substantive sentence to the period already undergone by him. Learned Additional Public Prosecutor has no objection to consider the mitigating circumstances to modify the sentence order.

I have heard learned counsel for the parties and have examined the record. Since the appellant-Harjinder Singh @ Jinda has not opted to challenge the findings of the Trial Court on conviction u/s 29/21(c) of NDPS Act and there is overwhelming evidence coupled with recovery, the order of conviction of the Trial Court qua him stands affirmed.

Regarding order on sentence, it reveals that the appellant was sentenced to undergo RI for 20 years with fine Rs. 2 lacs each for committing offence u/s 29 and 21(c) of NDPS Act. Nominal roll dated 04.10.2011, reveals that he has already undergone 08 years and 06 days incarceration as on 02.10.2011. The period has since increased to 9 years, 11 months and 22 days. It further reveals that he is not involved in any other criminal case. His overall jail conduct is satisfactory. The appellant is 60 years old and as per medical report from jail, he had Bilateral Total Hip Replacement Surgery with artificial implant in 1997 at Amritsar, for which he is on regular follow up from Safdar Jang hospital at Radiology Department. He also has Obstructive Lower Urinary Tract Symptoms (LUTS), with recurrent UTI for which he is being regularly followed up from Urology Department of Safdar Jang hospital and being planned for prostate surgery. Counsel relied upon State of Madhya Pradesh Vs. Babulal, to emphasize that background of the prisoner, home life, prospects of his reformation and rehabilitation, emotional and mental condition etc. are relevant circumstances to tilt the scale on the propriety of sentence. Reliance was also placed on the judgment in ''Balwinder Singh vs. Asstt. Commissioner, Custom & Central Excise'', AIR 2005 SC 2917, where the recovery was of 175 Kilograms heroin and 39 kilograms opium and the appellant was the driver of the vehicle from where the narcotics substances were recovered. In those circumstances, the Supreme Court reduced the sentence from 14 years awarded by the Trial Court to 10 years. Reliance was also placed upon the judgment in M. Prabhulal Vs. The Assistant Director, Directorate of Revenue Intelligence, where the quantity recovered was 66 kilograms heroin. The appellant was sentenced to undergo RI for 10 years and to pay a fine of Rs. 1 lac. In ''Noor Haider Siddiqui vs. Narcotics Control Bureau'', Crl.A. 96/2005, this Court reduced the sentence from 20 years to 10 years though the recovery was 77 kilograms heroin. In the recent judgment Shahejadkhan Mahebubkhan Pathan Vs. State of Gujarat, the Supreme Court relying upon ''Balwinder Singh vs. Asstt. Commr. Of Customs & Central Excise'' (supra), modified the sentence and reduced it from 15 years RI to the minimum prescribed term of 10 years. The recovery was of 500 grams brown sugar. It is relevant to note that in similar circumstances co-convict Pradeep Kumar Chawla @ Chhottu was sentenced to undergo RI for 12 years vide order dated 04.04.2013 in Crl.A. No. 860/2011. It is significant to note that co-convict Inder Singh has since expired and the proceedings against him have been dropped as abated.

Keeping in view the above judgments of the Supreme Court and this Court, and peculiar facts and circumstances of this case, while upholding the conviction of the appellant u/s 29 and 21(c) of NDPS Act, order on sentence dated 12.05.2011 is modified and the substantive sentence of the appellant-Harjinder Singh @ Jinda is reduced to RI for 12 years with fine Rs. 1 lac and in default of payment of fine to further undergo SI for six months u/s 29 NDPS Act, RI for 12 years with fine of Rs. 1 lac and in default of payment of fine to further undergo SI for six months u/s 21(c) of NDPS Act. All the sentences shall run concurrently. Benefit of Section 428 Cr.P.C. shall be given and the period already undergone in judicial custody shall be counted and set off against the sentence awarded. The appeal and Crl.M.B. No. 974/2013 stand disposed of in the above terms.