Ramadhaar Shah v. State of Delhi; Radhey Shyam Sahni v. State of Delhi

1 The appellants before this Court are Ram Adhar Shah and Radhey Shyam Sahni. Ram Adhar Shahis a convictunder Section 18 (b) of the NDPS Act. He has been sentenced to undergo RI for a period of 4 years and to pay a fine of Rs.40,000/- and in default of payment of fine, to undergo SI for 6 months. His nominal rollreflects that as on 01.09.2015, he has undergone incarceration of 3 years and 4 months; remission not being applicable to a conviction under the NDPS Act. CRL.A. Nos. 867/2013 & 1036/2013 Page lof[4] 2015:DHC:11960

2 Record shows that the appellant was found to be in illegal possession of 600 gms opium. He was apprehended by the raiding party along with his co-accused Radhey Shyam Sahni who has also been convicted and sentenced.

3 Learned amicus-curiae for appellant Ram Adhar Shah has addressed submissions only on the sentence. Submission being that even at the time when the sentence had been imposed upon the appellants, it had been noted that the appellant was a first offender having clean antecedents and four minor children including an infant; he was the only bread-earner in the family and was in fact a victim of circumstance. The additional submission made today is that even for the purpose of sentence, this Court may examine the submission that inspite ofthe fact that the place where the recovery had been effected was a busy place but no efforts were made by the raiding party to join any public witnesses and this had come in the categorical versions of PW-4, PW-8 & PW-9 who were all members of the raiding party; in fact the raiding party remained at the spot for 10 hours and it was just 500 meters away from the Metro Station but there appears to be no explanation for non-joining of the public witnesses. Notice under Section 50 ofthe NDPS Act was also not explained to the accused as they were illiterate persons. This also creates a doubt on the version of the prosecution. The link evidence also does not fully substantiate in view of the fact that this recovery had been made by the Crime Branch and the contraband and the samples had been deposited in the malkhana ofthe Crime Branch at Malviya Nagar but the investigation CRL.A. Nos. 867/2013 & 1036/2013 Page 2 of[4] was thereafter transferred to the local police station but the contraband and the samples continued to remain in the malkhana of Crime Branch. This additional submission may also be taken into account by the Court for sympathetic consideration of the sentence which has been awarded to the appellants.

4 The second convict Radhey Shyam Sahni has also been convicted under Section 18 (b) of the NDPS Act. He was found to be in illegal possession of 400 gms of opium. His sentence was RI 3 years and fine of Rs.30,000/- and in default of payment of fine, to undergo SI for 5 months. His nominal roll reflects that as on 26.08.2015, he has undergone incarceration of 2 years, 11 months and 10 days meaning thereby that he has almost completed the entire sentence. No modification is called for in the period of incarceration which has been imposed upon him. The appellant has also been sentenced to pay fine of Rs.30,000/- andin default of payment of fine, to undergo SI for 5 months. The default period is reduced by modifying the sentence to be undergone in default of payment of fine of Rs. 30,000/- to SI for 2 months instead of SI for 5 months while maintaining the conviction of the appellant Radhey Shyam Sahni without altering his sentence ofincarceration.

5 With these directions, the appeal of Radhey Shyam Sahni is disposed of.

6 Qua the appeal of Ram Adhar Shah, noting the period of incarceration suffered by the appellant till date which is almost 3 years and[4] months and noting theadditional fact thathe was found to CRL.A. Nos. 867/2013 & 1036/2013 Page 3 of[4] be in illegal possession of greater quantity of contraband than his coconvict but considering the additional submissions as noted supra qua the said appellant, the sentence of appellant Ram Adhar Shah is modified from RI 4 years to RI 3- Vi years. There is no alteration in the fine but in default of payment of fine, the appellant will undergo SI for a period of[2] months.

7 With these directions, both these appeals are disposed ofr 8 A copy of this order be sent to the ^ail Supeript^dent for intimation to the appellants.

SEPTEMBER 09,2015 A CRL.A. Nos. 867/2013 & 1036/2013 INDERMEET KAUR, J Page 4 of[4]