Shambhu Prasad vs State of U.P.

Mohammad Tahir, J.—1. This criminal appeal has been filed against the judgment and order dated 7.10.2006 passed by the Additional Sessions Judge(FTC), Court No. 1, Kanpur Nagar, in S.T. No. 149 of 2004, State v. Akhilesh Kumar Vajpaiyee and others, whereby the accused appellant Shambhu Prasad has been convicted and sentenced to undergo 10 years rigorous imprisonment and fine of Rs. 1 lac under Section 23 of the NDPS Act. It was also directed that in default of payment of fine the accused appellant shall further undergo three years imprisonment.

The prosecution case in brief is that on 5.3.2004, the complainant, who was then intelligence officer of Narcotics Control Bureau, Varanasi (in short ''N.C.B.'') along with other officials, on a tip-off that the appellant along with other co-convicts is a drug paddler and are transporting illicit N.D.P.S. substance in a truck, reached at Kanaudia Auto Centre, Lucknow-Kanpur By-pass at about 21.00 o''clock. After making Rajendra Prasad and Ram Ji Singh, who was standing there, independent witnesses, the complainant and other officials reached near the truck No. UHN 9137. Upon asking the names of the persons sitting in the truck, they introduced themselves as Shambhu Prasad (accused appellant), Bhola Prasad and Lal Ji Yadav. The appellant and the other co-accused persons served with the notice under Section 50 of the Act and explained them their legal right of option to give their search before a Gazetted officer or a Magistrate. But they declined the offer and offered that the N.C.B. team may take their search. Their search were made. 14 packets of illicit charas kept in the special cavity made behind the cabin of truck were recovered. Due to darkness and unavailability of balance and in view of security of recovered N.D.P.S. substance, the arresting officer along with the accused persons, recovered charas and the truck came back to the Headquarter, Custom and Central Excise, Sarvoday Nagar, Kanpur Nagar. Total weight of the recovered N.D.P.S. substances was found 250kg. and 400gm.

After taking samples from each packets of the recovered illicit charas, sealed in separate packets in presence of the accused/appellant and the witnesses and they also made their signatures on it. Seizure memo was prepared and the statement of the accused/appellant under Section 67 of the N.D.P.S. Act was also recorded and he admitted his guilt. In their statement, accused appellant Shambhu Prasad and co-accused Bhola Prasad conceded that the recovered N.D.P.S. substance was meant for one Akhilesh Kumar Vajpayee. They also informed that co-accused Govind Singh arranged the vehicle and the illicit charas with the help of co-accused Kamal, both were citizen of Nepal. The co-accused Govind Singh was sitting at the house of the co-accused Akhilesh Kumar Vajpayee. Thereafter, the N.C.B. officials reached at the house of co-accused Akhilesh Kumar Vajpayee where co-accused, Akhilesh Kumar, Jitendra Singh, Virendra Singh and Govind Singh were found sitting. After search made upon the accused person under the provisions of the N.D.P.S. Act, all the accused persons were arrested and came back to the Headquarter where accused Akhilesh Kumar Vajpayee disclose that recovered illicit charas was made available to him by co-accused Jitendra Singh, Virendra Singh and Kamal to sell through co-accused Ratan Kumar.

All the accused persons were put to trial on the complaint filed by the arresting officer in the court concerned for the offences under Sections 8/20/23/27A/29/60 of the N.D.P.S. Act. During the trial, the accused/appellant pleaded not guilty and also denied the recovery of the N.D.P.S. substances from his possession.

The prosecution in order to prove its case examined Kaushalya Kant Mishra as PW-1, Umesh Kumar Singh as PW-2 and Sanjeev Kumar Singh as PW-3.

From the side of the defence, DW-1 Virendra Kumar, DW-2 Suraj Mukhi and DW-3 Rajesh Kumar Vishwas were examined.

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 as hereinbefore mentioned in the beginning of the judgment. Hence, this appeal.

Heard Sri Agni Pal Singh, learned Amicus Curiae for the appellant and Sri Sanjay Kumar Singh, learned counsel for the Union of India and perused the record.

Learned Amicus Curiae 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 Amicus Curiae for the appellant has submitted that the accused appellant is not the previous convict and he has no criminal history to his credit; that the accused appellant is in jail since the very beginning i.e. from 5.3.2004 and in this way, he has suffered incarceration of about 11 years and 11 months in jail, thus he has suffered 1 year and 11 months incarceration over and above the substantive sentence of 10 years; that the accused appellant does not appear to be the dealer of the said recovered contraband because from the prosecution version itself the recovered contraband was meant for co-accused Akhilesh Kumar Vajpayee and that co-accused Govind Singh had arranged recovered contraband (charas) and the vehicle, which shows that the accused appellant was simply the carrier of the recovered charas; that the accused appellant is a poor fellow so it appears that because of poverty and unemployment he had indulged in the crime in question. So he may be released on the basis of the period already undergone by him.

On the other hand, learned counsel for the Union of India has submitted that 250 kg and 400 gm charas been recovered from the possession of the accused appellant; that in case of charas the commercial quantity is greater than 1 kg, thus the contraband recovered from the possession of the accused appellant falls in the category of commercial quantity. 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 imprisonment which has been imposed upon him for non payment of amount of fine.

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

The trial court has awarded the sentence of 10 years'' rigorous imprisonment and fine of Rs. 1 lac to the accused appellant under Section 23 of the NDPS Act and in default of payment of fine he has been further directed to undergo three years imprisonment. There is nothing on record to show that the accused appellant is a previous convict or he has criminal antecedents. From the prosecution version itself it appears that he is simply a carrier, so he may be indulged in such type of activities because of unemployment and poverty. Under Section 23 of the NDPS Act under which the accused appellant has been convicted and sentenced the minimum punishment of imprisonment is 10 years and minimum fine is one lakh rupees in case the commercial quantity of narcotic drug and psychotropic substances is recovered from the possession of the accused. The accused appellant has already suffered the substantive sentence of imprisonment of 10 years awarded to him by the trial court and over and above the substantive sentence of imprisonment of 10 years he has already suffered imprisonment of 1 year and 11 months in respect of default sentence of three years. The minimum sentence of imprisonment as well as of fine cannot be reduced because it would be against the legislative mandate but the sentence of imprisonment in default of payment of fine may be reduced. Thus, regard being had to all the facts and circumstances of the case I think that reduction of sentence of 3 years imprisonment, in default of payment of fine, to the imprisonment already undergone by the accused appellant would meet the ends of justice.

In view of the above, the appeal is partly allowed. The conviction of the accused appellant under Section 23 of the NDPS Act is maintained and the fine of Rs. 1 lac is also maintained. But in default of payment of fine, sentence of three years imprisonment is reduced to the period of imprisonment already undergone by him.

Since the accused appellant Shambhu Prasad has already suffered the sentence of substantive imprisonment as well as the modified sentence of imprisonment in default of payment of fine, so he shall be set at liberty forthwith if he is not required in any other case.

The case property relating to this case shall be disposed of as per rule.

This order be communicated to the lower court concerned immediately.

Certified copy of this judgment be supplied to the counsel for the accused appellant (Amicus Curiae) without any delay.

Amicus Curiae Sri Agni Pal Singh Advocate is entitled to receive Rs. 7,000/- (rupees seven thousand) in lump sum as fees from the State.