Nirbhay Singh vs State of U.P.

Barkat Ali Zaidi, J.—Appellant-accused Nirbhay Singh was tried in S.S.T. No. 135 of 2003 on a charge u/s 8/20 ''the Narcotic Drugs and Psychotropic Substances Act'', 1985 (hereinafter referred to as the ''Act'') and the Addl. Sessions Judge, Court No. 10, Agra by judgment and order dated 4.10.2007 found him guilty and sentenced him to undergo rigorous imprisonment for three and a half year and a fine of Rs. 10,000 in default, further imprisonment for two months.

He has come from jail in appeal here.

Heard Dr. Abida Syed, amicus curiae for the Appellant and Mohammad Israil Siddiqui, Addl. Government Advocate, for the State.

The counsel for the accused had declined to argue the case on merits and has only argued on the point of sentence.

The suggestion from the side of the accused is that the accused has already undergone imprisonment for 3 years one month and 20 days and he may be let off, on the sentence already undergone. She has pleaded that the accused has an old ailing mother to look after, besides his own children, and they are all living in penury and poverty, because the accused-Appellant is the only bread earner of the family.

Considerations of such nature should not be classified as unjustified, emotional and misplaced sympathy because humanism is also an essential ingredient of justice.

It is not, that the accused has not been punished for the crime he has committed. He has already been in jail for more than 3 years and it cannot, therefore, be said that he has not received condign punishment.

The other perspective which the Courts have to keep in mind, is that our jails are overpopulated, and the prisoners are being maintained in jails, without necessary facilities. It has already been pronounced by the Supreme Court that a prisoner does not lose a right of basic necessities of decent living, while undergoing sentence in jail. It is not a secret that condition in our jails are shabby and shoddy. Courts should, therefore, modulate their policies of sentencing accordingly and it is the time we look around for other punishments besides imprisonment in prison, like community service and other assignments of similar nature. It is time the State considers the feasibility of providing such punishments in the statute.

We accept the plea for the counsel of the accused and reduce the term of imprisonment of the accused-Appellant to the period of sentence already undergone by him in jail.

Ordered accordingly.

Appeal allowed to that extent.

The fee of the amicus curiae Dr. Abida Syed is fixed at rupees five thousand.