Reserved
In Chamber
Case :- CRIMINAL APPEAL No. - 1086 of 2012 Appellant :- Azaz @ Guddu Respondent :- State of U.P.
Counsel for Appellant :- Atul Pandey, Pradeep Kumar Pal (Amicus Curie) Counsel for Respondent :- Govt. Advocate
Hon'ble Naveen Srivastava,J.
By way of instant appeal, challenge has been made to the validity and substantiality of the judgment and order of conviction dated 14.02.2012 passed by learned Additional Session Judge, Court No. 5, Pilibhit in Special Trial No. 67 of 2011 (State Vs. Azaz @ Guddu) arising out of Case Crime No. 46 of 2011, under Sections 8/21/22 of N.D.P.S. Act, 1985, Police Station G.R.P., Pilibhit, District Pilibhit, where by the accused has been sentenced to undergone six months rigorous imprisonment coupled with fine Rs. 1,000/- in default thereof to further undergone 15 days imprisonment.
Heard Sri Pradeep Kumar Pal, learned Amicus Curiae appearing for the appellant and learned AGA for the State and perused the record.
Facts relevant for adjudication of this appeal appear to be that the accused- appellant has been charged for offence under Section 8/21/22 N.D.P.S. Act, 1985 for possessing 35 gram Diazepam powder were involved in Case Crime No. 46 of 2011, Police Station G.R.P., Pilibhit in respect of recovery / incident, which took place on 13.07.2011 around 02:15 a.m. on eastern side of platform, warehouse of railway station, Pooranpur that they were arrested by the police party led by Sub- Inspector Pradeep Kumar Yadav.
The allegations against the accused appeallant as contended in the FIR indicate that on 13.07.2011, S.I. Pradeep Kumar Yadav, Police Station G.R.P., Pilibhit along with other police personnel reached near the exit gate of the railway station, Pooranpur, where the informer informed them that some persons are making preparation for commiting theft. The public witnesses were sought to be arranged but no one was willing to become a witness therefore the police party carried out enter se search of each other and after confirming that they were not possessing any objectionable material / article arrived on the eastern side of the platform.
The police party apprehended the culprits around 02:15 a.m. near terrace of warehouse, when asked about the name, one of them spelt his name as Azaz @ Guddu S/o Mahmood Khan R/o Sherpur, P.S. Pooranpur, District Pilibhit. His search was also made, apart from other article, from the right pocket of the ‘trouser’ of the appellant- Azaz, 35 gram Diazepam powder was recovered by the police. Similarly the Diazepam powder was also recovered from the other co-accused arrested along with the appellant.
The accused- appellant told that they usually mix the Diazepam powder with the Biscuit or tea and administrated the same to the passengers, who are rendered unconscious and then they easily commit theft of passengers goods.
The recovered article from the accused appellant were kept under separate seals. Specimen seal was prepared and recovery memo was prepared by the S.I., Pradeep Kumar, which was read over and explained to all the accused and after obtaing the endorsement of all present on spot including the accused- appellant, copy whereof was given to the accused- appellant and the case was lodged against the present accused- appellant and co-accused as Case Crime No. 46 of 2011 under Section 8/21/22 N.D.P.S. Act, Police Station G.R.P. Pilibhit, District Pilibhit on 13.07.2011 at 07:45 a.m.
Consequent thereupon the investigation ensued and the same was initially entrusted to S.I., Kishan Swaroop Verma, who took over the investigation noted contents of the chik FIR and the relevant entry made in the general diary of date, and recorded statment of the accused- appellant and thereafter due to his transfer the investigation was handed over to P.W.- 6, Ramesh Singh Yadav, who submitted the charge sheet and also obtained forensic report.
Consequently, the Additional Sessions Judge, Court No. 5, Pilibhit took cognizance of the offence and accused- appellant was charged under Section 8/21/22 N.D.P.S. Act, charge were read over and explained to the accused- appellant, who abjured the charge and claimed to be tried.
The prosecution in order to prove guilt of the accused- appellant examined as many as five witnesses.
Thereafter the evidence of the prosecution was closed and the statement of the accused was recorded under Section 313 Cr.P.C., wherein accused- Azaz @ Guddu denied the claim regarding his complicity and involvement in the crime and stated that he has falsely been implicated.
Learned Additional Sessions Judge, Pilibhit after apprisal of the facts and vetting merit of the case and evaluation of the evidence on record, returned aforesaid findings of conviction under Section 8/21/22 of N.D.P.S. Act and sentence the appellant to undergo six months rigorous imprisonment coupled with fine of Rs. 1,000/ and in default of fine the concern convicted would have to undergo 15 days additional imprisonment.
Feeling aggrieved by the same, the accused- appellant have come up before this Court.
Learned Amicus Curiae appear for the accused- appellant, at the outset did not challenge the finding recorded by the trial Court on conviction but submitted that sentence be reduced to the period already undergone, since it is a matter of year 2011, more than 10 years have already been passed. It is further submitted that accused- appellant has already undergone about more than 5 months of sentence and no useful purpose would achieve in case he is sent to jail at this stage.
Learned AGA appearing for the State has vehemently opposed the prayer and submits that the accused- appellant has been rightly convicted for the offence after appreciating the evidence available on record, hence the sentence awarded by the learned trial Court is adequate and no sympathy should be given to the accused- appellant.
Principle of sentencing has been an issue of concern before the Supreme Court in many cases and tried to provide clarity on the issue. Apex Court has time and again cautioned against the cavalier manner considering the way sentencing is dealt by High Courts and Trial Courts.
"..... It is established that sentencing is a socio-legal process, wherein a Judge finds an appropriate punishment for the accused considering factual circumstances and equities. In light of the fact that the legislature peroxided for discretion to the Judges to give punishment, it becomes important to exercise the same in a principled manner." (para 49 of Accused ''X' vs. State of Maharastra (2019) 7 SCC 1) "12. Sentencing for crimes has to be analysed on the touchstone of three tests viz. crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, anti-social or abhorrent character of the crime, state of victim. Criminal test involves assessment of factors such as age of the criminal, gender of the criminal, economic conditions or social background of the criminal, motivation for crime, availability of defence, state of mind, instigation by the deceased or any one from the deceased group, adequately represented in the trial, disagreement by a Judge in the appeal process, repentance, possibility of reformation, prior criminal record (not to take pending cases) and any other relevant factor (not an exhaustive list).
13. Additionally, we may note that under the crime test, seriousness needs to be ascertained. The seriousness of the crime may be ascertained by (i) bodily integrity of the victim; (ii) loss of material support of amenity; (iii) extent of humiliation; and (iv) privacy breach." (State of Madhya Pradesh vs. Udham and others (2019) 10 SCC 300) It is also notable that ". where minimum sentence if provided for, the Court cannot impose less than minimum sentence." (Para 8 of State of Madhya Pradhesh vs. Vikram Das (2019) 4 SCC 125) Considering the facts and circumstances of the present case as well as keeping in view the position of law as mentioned above and considering the fact that the accused- appellant has already undergone sentence of more than 5 months, this Court is of the view that if the sentence awarded is reduced to the period already undergone, the ends of justice would be served.
The appeal is partly allowed.
The judgment and order dated 14.02.2012 passed by the Additional Sessions Judge, Court No. 5, Pilibhit in Special Trial No. 67 of 2011 (State Vs. Azaz @ Guddu) arising out of Case Crime No. 46 of 2011, under Sections 8,21,22 N.D.P.S. Act, Police Station G.R.P., Pilibit, District Pilibhit convicting the accused- appellant Azaz Khan @ Guddu under Sections 8/21/22 N.D.P.S. Act and sentencing him to six months rigorous imprisonment and in default of fine, additional 15 days is hereby modified to the extent that period of imprisonment is confined to the period already undergone. The fine imposed by the Court below shall be paid by the accused- appellant within a period of one month (if not paid) from today.
Lower Court record alongwith a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action.
Order Date :- 30.9.2021 SK Srivastava