Dev Sagar v. State of Delhi

1. By the present appeals, the Appellants challenge the common impugned judgment dated ll"^ March, 2008 whereby the Appellants have been convicted for offence under Section 18(c) of the NDPS Act and the order on sentence dated 19^*" March, 2008 whereby they have been directed to undergo Rigorous Imprisonment for 13 years and fme ofRs.l lakh and in default ofpayment offme, to further undergo Rigorous Imprisonment for 1 year.

2. Learned counsel appearing for the Appellants oninstructions from the Appellants, who are present in Court in custody, pray that they are not challenging the judgment of conviction, however, the order on sentence be modified being on the higher side and the Appellants be released on minimum sentence of 10 years and sentence indefault ofpayment offine be also reduced.

3. I have heard learned counsel for the parties.

4. Since the present appeals are first appeals against conviction, the same are^equired tobeconsidered onthe facts and law both.

5. Briefly the case ofthe prosecution is that on 21®' July, 2003 a seci"et Crl.A. Nos. 969/2008 & 337/2008 Page 2 of[6] V J information was received by SI Bhoop Singh that two boys namely Ombir and Dev Sagar, who were residents of UP and involved in supply of Opium in Delhi, would come in the night in between 10.00 PM and 11.00 PM, opposite Shamshan Ghat, Seema Puri, Delhi for supply of contraband. The information was recorded vide DD No. 18 and the information in this regard was sent to the senior officers. Raiding party was constituted. On reaching Seema Puri Chowk near Apsra Border at 9.30 pm. 5-6 passersby were requested to join the raiding party but none agreed to join the same. At about 10.15 PM, the Appellants got down from the bus with their bags hanging on their shoulders. They were apprehended and notices under Section 50 NDPS Act were served on the Appellants and from their possession 5 Kgs opium each was recovered from the bags of the Appellants. Two samples of25 gms. each were taken out from each polypack containing 5kg opium and the case properties and samples were sealed with the"^seal of SI Bhoop Singh besides filling up CRCL forms at the spot. The contraband, samples and CRCL forms were handed over tothe SHO PS Narcotics Branch, who affixed his seal on the six parcels and two CRCL forms and handed them over to HC Gian Prakash, MHC(M). Entries were made in Register No.19 through HC Gian Prakash, PW[5]. FSL report gave Crl.A. Nos. 969/2008 & 337/2008 Page 3 of[6] positive of opium.

6. The main point ofcontention before the learned Trial Court and in the appeal paper book before this Court is non-compliance of Section 50 NDPS Act. In the present case, the contraband has been recovered from the shoulder'bags of both Appellants and not from personal search. Thus, Section 50 NDPS Act was not required to be complied with. Further PW[5] HC Gian Prakash, MHC (M) has clearly deposed that 6parcels and 2CRCL forms were deposited with him and as long as the samples remained in his custody, they were not tempered with. He further stated that he handed over parcels Aand Band CRCL forms to Ct. Girish Kumar for depositing the same with CRCL Pusa Laboratory. Copy of the road certificate was exhibited as Ex.PW5/C. Further PW[2] Ct. Girish Kumar has deposed that when the samples remained in his custody, the same were not tempered with. Link evidence is further proved by the fact that when the samples and the CRCL forms were received atthe Laboratory, the seals were found to be intact.

7. From the perusal of the evidence on record, there is no noncompliance of the provisions of the NDPS Act. The version of the police officers 'cannot be ignored merely because they failed to join the Crl.A. Nos. 969/2008 &337/2008 Page 4of[6] independent witnesses despite efforts during the proceedings. Nothing has been shown as to why prosecution witnesses would be imphcating the Appellants falsely. In view of the overwhelming evidence on record, I find no illegality inthe impugned judgment dated 11"" March, 2008 passed by the learned Special Judge convicting the Appellants for offence under Section 18(c) oftheNDPS Act.

8. As regard the quantum of sentence, in Shahejadkhan Mahebubkhan Pathan v. State of Gujarat, (2013) 1 SCC 570 the Hon'ble Supreme Court held that the quantum of punishment, fine and sentence in default of payment of fine should not be harsh or excessive. The Courts are duty bound to take into consideration relevant circumstances regarding offence and offender. Imposition of a long default sentence on penurious offenders would not be harsh and excessive.

9. No doubt commercial quantity has been recovered from the possession of the Appellants. However, there is no previous conviction of theAppellants. The Appellants, who are present in Court, state thatthey are not in position to deposit the fine amount. Further even in case of recovery of commercial quantity of heroin, the Hon'ble Supreme Court reduced the sentence from 14 years awarded by the Trial Court to 10 years. Ref Crl.A. Nos. 969/2008 & 337I200S Page 5 of[6] ' / Balwinder Singh & Ors. v. Assistant Commissioner, Customs & Central Excise, AIR 2005 SC 2917.

10. In view of the facts and circumstances of the case, the order on sentence is modified. The Appellants are directed to undergo Rigorous Imprisonment for aperiod of10 years and to pay a fine ofRs.l lakh and in default ofpayment offine to further undergo Rigorous Imprisonment for a period of 6 months.

11. The appeals are accordingly disposed of Copy of the order be communicated tothe Appellants through Superintendent, Tihar Jail.