CRIMINAL APPEAL (S.J.) No.607 OF 2007 (Against the judgment dated 16.5.2007 passed by Addl. District & Sessions Judge-IX, Patna in Special Case no. 16/05/44/2007.) ANTU SINGH @ ABHAY SINGH, SON OF SRI AKHILESHWAR SINGH, RESIDENT OF PANI TANKI KHAJEKALAN, P.S.- KHAJEKALAN, DISTRICT- PATNA. --------------Appellant Versus STATE OF BIHAR ………….Respondent For the appellant : Mr. Ashutosh Kumar, Advocate Mr. Atal Bihari, Advocate. For the State : Mr. Satya Narain Prasad, APP. WITH CR. APP (SJ) No.641 of 2007 (Against the judgment and order dated 16.5.2007 and order or sentence dated 19.5.2007 passed in Special Case no. 16/05/44/2007 by Sri Brajendra Kumar Srivastava, Addl. District & Sessions Judge-IX, Patna) PAPPU LALA @ VIJENDRA SINGH, S/O- LATE TEJ NARAIN LAL, RESIDENT OF LODI KATRA, P.S.- KHAJEKALLAN, DIST- PATNA. ---------------------Appellant Versus STATE OF BIHAR ……..Respondent For the appellant : Mr. Tilak Sao, Advocate For the State : Mr. Satya Narain Prasad, APP. P R E S E N T THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL Kishore K. Mandal, J Both the appeals arise out of and are directed against judgment and order dated 16th May, 2007 passed by Addl. Sessions Judge –IX, Patna in Special Case No. 16/2005/44 of 2007 whereby the appellant Antu Singh @ Abhay Singh has been sentenced to undergo rigorous imprisonment for 5 years and a fine of Rs. 50,000/- in default thereof to undergo further - 2 - period of one year rigorous imprisonment for having committed the offence punishable under section 21(b) of the Narcotic Drugs & Psychotropic Substance Act 1985 (for short N.D.P.S. Act). Appellant Pappu Lala @ Vijendra Singh has been convicted and sentenced under section 21(b) of N.D.P.S. Act and directed to undergo rigorous imprisonment for 3 years and a fine of Rs. 30,000/- and in default thereof to undergo further period of six months rigorous imprisonment. 2. The present case germinates out of Special Case No. 16/2005/44/2007 arising out of Khajekalan P.S. case no. 45/2005 lodged on 19.3.2005 at 3.50 p.m. The said F.I.R. was lodged on the self statement of P.W. 1 Neyaz Ajaj Ahmad (Ext. 2). On that basis, a formal F.I.R. (Ext. 1) was drawn up. As per the prosecution case, on 19.3.2005, the informant (P.W. 1), who was then posted as S.I. as Khajekalan Police Station, got an information that some anti-social elements had assembled and were engaged in selling smack inside a temple situated in mohalla ‘Begum ki Haweli’ within Khajekalan Police Station. P.W. 1 reduced the said information into a sanha entry bearing no. 703 and then proceeded to the said place on a mobile van with a team of police personnels consisting of A.S.I. Hari Shankar Jha (P.W. 4), Hawaldar Ghanshyam Prasad (not examined), Hawaldar Dhirendra Rai (P.W. 7), Constable Anil Kumar (P.W. 6), Constables Laxman Mahto and Anil Kumar (not examined) . They reached the said temple at about 15.10 - 3 - hours and entered into the precinct of the temple and found four young boys sitting on the varanda of the temple who, after having seen the police, made frantic efforts to escape but ultimately all of them (including the present appellants) were apprehended. A search was thereafter carried out in presence of two independent witnesses namely Bishun Deo Yadav (P.W. 3) and Nemat (P.W. 2) in course whereof 20 grams of smack (heroin) wrapped in white polythene bag was recovered from the right pocket of the trouser of appellant Antu Singh @ Abhay Singh and 10 purias (small packs) of smacks were said to have been recovered from the right pocket of the trouser of appellant Pappu Lala @ Vijendra Singh. The prosecution case further is that in course of raid, one live bomb was found kept in one of the corners of the said temple. Thereafter, seizure list regarding the recovered article/substance/purias (Ext. 1) was prepared in presence of independent witnesses and copy whereof was made over to the appellants who were arrested. On the basis of these facts, P.W. 1 recorded his self statement (Ext.2) at the police station on 19.3.2005 which gave rise to the present Khajekala P.S. case no. 45/2005 instituted under section 20 of the N.D.P.S. Act read with sections 4 and 5 of the Explosive Substance Act. As noticed above, a formal F.I.R. (Ext. 4) was later drawn up. Ram Narayan Lal (P.W. 5), the investigating officer of the case thereafter made investigation and after collecting all relevant materials submitted charge sheet against - 4 - all the four accuseds including the present two appellants. The Court took cognizance of the matter on 18.5.2005 and thereafter the case was transferred to the file of present Trial Judge where the charges were framed against the present appellants under sections 21 and 22 of the N.D.P.S. Act and sections 4 and 5 of Explosive Substance Act. 3. The appellants abjured their guilt and claimed to be tried. They took the plea of false implication as nothing was recovered like smack/heroine from their possession. 4. In order to prove the charges, the prosecution produced and examined altogether eight witnesses. P.W. 1 Neyaz Ajaz Ahmad is the informant of the case. P.W. 2 Nemat and P.W. 3 Bishun Deo Yadav are the independent seizure list witnesses. P.W. 4 Hari Shankar Jha is the A.S.I. who constituted the raiding team on the relevant date. P.W. 5 Ram Narayan Lal is the Investigating Officer of the case. P.W. 6 Anil Kumar, P.W. 7 Dhirendra Rai are other police personnels who were members of the raiding team on the relevant date. P.W. 8 Sudama Singh is a formal witness who claims to have brought the forensic science laboratory reports (Exts. 8 and 9). It is to be noted here that out of four accuseds put on trial, the learned Trial Court acquitted two of them of all the charges and found the present appellants guilty under section 21 of N.D.P.S. Act. These appellants were, however, acquitted of the charges framed under sections 4 and 5 of the Explosive Substance Act. - 5 - 5. Mr. Ashutosh Kumar, learned Counsel appearing on behalf of appellant Antu Singh @ Abhay Singh in Cr. Appeal No. 607/2007(S.J.) addressed this Court on the question of sentence. Mr. Tilak Sao, learned Counsel for the appellant Pappu Lala @ Vijendra Singh in Cr. Appeal No. 641/2007(S.J.) also adopted the submissions advanced by Mr. Ashutosh Kumar. 6. In view of the short issue raised by the learned counsels for the appellants, this Court refrains from referring to the depositions of the prosecution witnesses and the documents brought in support thereof in order to reappraise them. 7. Counsel for the appellants submits that the F.I.R. in the present case was lodged way back on 19.3.2005. The appellants were arrested and remanded to jail custody w.e.f. 21.3.2005. The judgment itself indicates that both the appellants were of 20-25 years old when the occurrence was committed by them. Referring to paragraph no. 16 of the judgment, it has been argued that admittedly the appellants are the first offenders. It has further been pointed out with reference to the records that appellant Antu Singh @ Abhay Singh remained in custody throughout since 21.3.2005 i.e. for nearly 4 (four) years by now. So far appellant Pappu Lala @ Vijendra Singh is concerned, learned counsel appearing on his behalf submits that in course of investigation and trial, this appellant - 6 - had remained in custody for nearly 10 months and after the impugned judgment, he remained in custody for more than 3 months and thereafter was granted the privilege of bail. In this way, it has been submitted that this appellant has also remained in custody for nearly 13 months and 4 days till date. 8. Mr. Prasad, counsel for the State, on perusal of the Lower Courts records does not dispute this statement with regard to the actual incarceration undergone by the present two appellants. Both the counsels for the appellants in one voice submitted that admittedly both the appellants had to undergo mental distress throughout these years. Having highlighted the salient features, It has been submitted that a lenient view be taken in the matter so far as imposition of sentence(s) is concerned. 9. Having heard both the parties, this Court is of the view that the following sentence shall meet the ends of justice. (i) Appellant Antu Singh @ Abhay Singh (Cr. Appeal No. 607/2007(S.J.)) is sentenced to the period already undergone by him. He is also imposed a fine of Rs. 10,000/- in default whereof he shall have to undergo further period of 3 months rigorous imprisonment. (ii) Appellant Pappu Lala @ Vijendra Singh (Cr. Appeal No. 641/2007(S.J.)) is - 7 - sentenced to the period already undergone by him. He is imposed a fine of Rs. 10,000/- in default whereof, he shall have to undergo rigorous imprisonment for 3 months. 10. It has been pointed out that the appellant Antu Singh @ Abhay Singh is presently in custody. In the event of payment of fine so imposed upon him, he is directed to be released forth with from jail custody, if not required in any other case. So far as appellant Pappu Lala @ Vijendra Singh (Cr. Appeal (S.J.) 641/2007) is concerned, it has been pointed out that he is on bail. In that view of the matter, this Court directs that in the event of payment of fine so imposed upon him within 8 (eight weeks) from today, he shall be discharged from the liabilities of the bail bonds. In the event of non payment of fine within the time indicated hereinabove, the Trial Court shall take all coercive steps to ensure his arrest and to make him serve the sentence imposed in default of non payment of fine treating the bail bonds as cancelled. 11. In the result, both the appeals stand dismissed with the modification in the sentence as indicated above. Patna High Court Dated 24th February, 2009, NAFR/ pkj ( Kishore K. Mandal, J )