1. This criminal appeal has been filed under Section 374 (2) of Code of Criminal Procedure, 1973 (in short 'Code'), against the judgment and order dated 15.5.2013, passed by Sessions Judge, Shrawasti in Special Case No.7 of 2011 (State vs. Aziz @ Kabbu @ Baur) arising out of Case Crime No.2189 of 2010, under Section 20 (II) (c) of The Narcotics Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' for short), Police Station Bhinga, District Shrawasti whereby appellant Aziz @ Kabbu @ Baur (hereinafter referred to as 'appellant') has been convicted and sentenced for ten years rigorous imprisonment with fine of Rs.One lac for the offence under Section 20 (II) (c) of NDPS Act and in default of payment of fine, he has to undergo one year additional rigorous imprisonment.
2. The prosecution case, in brief, is that on 10.12.2010, Sub Inspector, Ram Briksh Singh (P.W.2) along with Constables Ramayan Prasad, Ram Gopal Singh, Dev Prakash Dubey were on patrolling duty and in search of wanted criminals as they were passing towards Mahri via jungle, they saw appellant carrying a white colour bag. Sensing some doubt, the police party intercepted the appellant at about 6:20 a.m. and search his bag wherefrom one kg contraband drug (charas) was recovered.
3. After drawing the sample, the said contraband substance (charas) was sealed, recovery memo was prepared, accused appellant was arrested and a criminal case was registered against him at Police Station Bhinga, District Shrawasti.
4. The sample of recovered contraband (charas) was sent for chemical examination to Forensic Science Laboratory, U.P. wherein it was found that said article was charas. After investigation, charge sheet was filed against the appellant under Section 8/20 of NDPS Act.
5. The charges for the offence under Section 8/20 NDPS Act was framed against the appellant.
6. During trial, the prosecution, in order to prove its case, examined three witnesses namely S.I. Suraj Prasad as P.W.-1, S.I. Ram Briksh Singh as P.W.-2 and Brijraj Yadav as P.W.-3.
7. After conclusion of the prosecution evidence, statement of appellant was recorded under Section 313 Cr.P.C. wherein he denied the prosecution story as well as the evidence and stated that he has been falsely implicated.
8. In defence of appellant, witness namely Mohd. Salim was examined as D.W.-1.
9. The trial Court, after considering the evidence available on record in view of the arguments of learned counsel for the appellant as well as learned counsel appearing for the State, vide impugned judgment and order dated 15.05.2013 convicted and sentenced the appellant, as mentioned above.
10. Aggrieved by the said judgment and order dated 15.05.2013, the appellant has preferred this appeal.
11. Heard Shri Piyush Kumar Singh, learned counsel for appellant, learned AGA for the State and perused the record.
12. Learned counsel for appellant submitted that though the appellant is innocent and has been falsely implicated, but he is not pressing this appeal on merits of the case. Learned counsel further submitted that appellant is neither a member of any gang nor was carrying any illegal arms with him at the time of occurrence. Occurrence was said to have taken place in the year 2010 and recovery of only one kg has been shown. Learned counsel further submitted that appellant has been convicted for ten years rigorous imprisonment with fine of one lac rupees whereas he is languishing in jail since 10.12.2010 ie. for more than ten years. Learned counsel further submitted that appellant is very poor and he is not in a position to pay the fine, awarded against him. Learned counsel further submitted that in view of poverty of the appellant, linent view may be adopted by reducing the sentence in default of payment of fine.
13. Learned AGA vehemently opposed the submissions advanced by learned counsel for appellant but did not dispute the factual submission made by learned counsel for the appellant.
14. It is settled principle of sentencing and penology that undue sympathy in awarding sentence with accused is not required. The object of sentencing in criminal law should be to protect society and also to deter criminals by awarding appropriate sentence. In this regard, Court in State of Madhya Pradesh Vs. Saleem @ Chamaru, AIR 2005 SC 3996, has said as under:-
"10. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal".
15. In Ramashraya Chakravarti vs. State of Madhya Pradesh AIR 1976 SC 392, reducing the sentence of young accused, aged about 30 years, convicted for offence under Section 409 I.P.C., from two years to one year, has observed as under:-
"In judging the adequacy of a sentence the nature of the offence, the. circumstances of its commission, the age and character of the offender, injury to individuals or to society, effect of the punishment on the offender, eye to correction and reformation of the offender, are some amongst many other factors which would be ordinarily taken into consideration by courts. Trial courts in this country already over-burdened with work have hardly any time to set apart for sentencing reflection. This aspect is missed or deliberately ignored by accused lest a possible plea for reduction of sentence may be considered as weakening his defence. In a good system of administration of criminal justice presentence investigation may be of great sociological value. Through out the world humanitarianism is permeating into penology and the courts are expected to discharge their appropriate roles."
16. In the peculiar facts and circumstances of the case, as well as looking into COVID-19 pandemic situation as well as period of detention in jail, linent view is required to be adopted in this case.
17. Accordingly, conviction as well as principal sentence awarded to the appellant for the aforesaid offence, requires no interference and is maintained. But in view of the law laid down by Hon'ble Supreme Court in Saleem @ Chamaru (supra) and Ramashraya (Supra), the sentence awarded in lieu of default of payment of fine is modified and reduced from one year additional rigorous imprisonment to only three months rigorous imprisonment with further direction that rest part of the sentence including fine, passed vide impugned judgment and order, requires no interference.
18. Hence, the appeal is partly allowed. The impugned judgment and order is modified. The conviction and principal sentence of the appellant for the aforesaid offence is confirmed but in default of payment of fine, the quantum of sentence awarded to appellant is modified and reduced to the aforesaid extent.
19. Let a copy of this judgment along with lower court record be transmitted to the trial Court concerned forthwith for necessary compliance.
Order Date :- 13.1.2021 P.s.