Rajvir v. State

1. By way of present appeal, the appellant seeks to assail the judgment and order on sentence dated 15.05.2017 passed by Special Judge, NDPS- 02(Central) Tis Hazari Courts, Delhi, in SC no. 47/15 arising out of FIR NO. 408/2015 registered under Sections 15/61/85 NDPS Act at P.S. Kashmeri Gate, Delhi. Vide order on sentence, the appellant has been directed to undergo RI for a period of 2 years and 6 months alongwith fine of Rs.5,000/- for the offence punishable under Section 15(b) NDPS Act, in default thereof would further undergo SI for 20 days. The benefit of Section 428 Cr.P.C. has been provided to the appellant. Vide order dated 03.10.2018, the sentence of the appellant was suspended during the pendency of the present appeal.

2. Briefly put, the case of the prosecution is that on 22.08.2015, Ct. Om Prakash was on duty at the Outgate of ISBT, Kashmere Gate. At about 5:00 PM, he noticed the appellant coming down from the foot over bridge carrying a heavy, green-colored bag. On seeing the constable, the appellant attempted to turn back, this arose suspicion. Ct. Om Prakash stopped him and checked the bag, which was found to contain a powdery substance, found to be post-powder. He immediately informed W/Ct. Urmila, and soon thereafter, Ct. Virender and ASI Dalbir Singh reached the spot. Ct. Om Prakash produced the appellant and the recovered bag before them. ASI Dalbir Singh served a notice under Section 50 of the NDPS Act, explained the appellant’s legal right, but the appellant declined to exercise the same. ASI Dalbir Singh then inspected the bag and recovered 15 kg of postpowder. Two samples of 1 kg each were drawn, while the remaining contraband was sealed. All parcels were sealed with the impression “DS”, the FSL form was filled with corresponding seal impressions, and the seal was handed over to Ct. Om Prakash. A rukka was prepared and sent through Ct. Dharmender, leading to registration of the present FIR.

3. In support of its case, the prosecution examined 10 witnesses, all of whom were police witnesses. HC Om Prakash, who stopped the appellant and checked his bag, was examined as PW-7. ASI Dalbir Singh, who served the notice under Section 50 of the NDPS Act, was examined as PW-10. The remaining witnesses were formal in nature and deposed to various aspects of the investigation.

4. A perusal of the record indicates that the appellant was found in conscious possession of 15 kg of poppy straw at the ISBT Outgate. The recovery was made when Ct. Om Prakash saw him carrying a heavy green bag and acting suspiciously, leading to the discovery of poppy powder inside the bag. It is noted that all mandatory procedures were properly followed, ASI Dalbir Singh served a valid Section 50 notice, drew and sealed samples and deposited them securely. The SHO re-sealed the parcels, and the FSL confirmed that the recovered material was poppy straw. The defence version that the bag belonged to one Avnish @ Sonu was rejected, as the appellant produced no material to substantiate this claim. The testimonies of the police witnesses were cogent and consistent, and nothing was brought on record to discredit their statements or suggest any motive for false implication. Consequently, the conviction of the appellant under Section 15(b) of the NDPS Act is upheld.

5. At this stage, learned counsel for the appellant submits that the appellant, who is present in Court and has handed over his gate pass, which is taken on record, is remorseful and being fully aware of the consequences, does not wish to press the present appeal on merits. He accepts his guilt and prays that he be released on the period already undergone by him in custody. It is further submitted that the fine imposed upon him stands paid.

6. Learned APP for the State has handed over a Status Report, which is taken on record, as per which the appellant has no other involvements.

7. The nominal roll of the appellant on record, dated 23.07.2018, reflects that he has undergone approximately 1 year and 6 months of the sentence. His conduct in jail has been noted to be satisfactory. It further records the amount of fine imposed upon him stands paid.

8. The law regarding release of the appellant in cases where the convict has undergone more than half of the sentence was laid down by the Supreme Court in Sonadhar Vs. State of Chhattisgarh, reported as 2021 SCC OnLine SC 3683, and the relevant portion of the same is extracted hereinunder: ““28. We thus issue the following directions: a) A similar exercise be undertaken by the High Court Legal Services Committee of different High Courts so that convicts represented by legal aid Advocates do not suffer due to delay in hearing of the appeals.

NALSA will circulate this order to the concerned authority and monitor the exercise to be carried on. b) The Delhi High Court Legal Services Committee would take up the cases of those convicts who have undergone more than half the sentence in case of fixed term sentences and examine the feasibility of filing bail applications before the High Court, while in case of „life sentence‟ cases, such an exercise may be undertaken where eight years of actual custody has been undergone. c) We are of the view that in fixed term sentence cases, an endeavor be made, at least as a pilot project, in these two High Courts to get in touch with the convicts and find out whether they are willing to accept their infractions and agree to disposal of the appeals on the basis of sentence undergone. d) A similar exercise can be undertaken even in respect of „life sentence‟ cases where the sentenced persons are entitled to remission of the remaining sentence i.e., whether they would still like to contest the appeals or the remission of sentence would be acceptable to such of the convicts.”

9. Having regard to the fact that the incident pertains to the year 2015, and keeping in view the facts and circumstances noted hereinabove as well as the decision in Sonadhar (supra), and noting that the appellant has already paid the fine, the substantive sentence of the appellant in the present appeal is hereby modified to the period already undergone by him.

10. The personal bond furnished by the appellant stands cancelled and the sureties are discharged.

11. The present appeal is partly allowed and disposed of in the above terms.

12. A copy of this order be communicated to the concerned Jail Superintendent as well as to the Trial Court.

MANOJ KUMAR OHRI (JUDGE) NOVEMBER 13, 2025