IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 541-DB of 2007 DATE OF DECISION : 19.03.2010 Passing Lama .... APPELLANT Versus U.T. Chandigarh ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Mr. C.S. Rana, Advocate, for the appellant. Mr. Hemant Bassi, Advocate, for the respondent-State. * * * SATISH KUMAR MITTAL , J. 1. Appellant Passing Lama was tried by the Special Court, Chandigarh, for committing the offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as `the NDPS Act'), for having in his conscious possession 35 Kgs. of charas, without any permit or licence. Vide judgment and order dated 15.5.2007, he was convicted for the aforesaid offence and sentenced to undergo rigorous imprisonment for a period of 12 years and to pay a fine of Rs. 1,50,000/-, in default to further undergo rigorous imprisonment for a period of three years. Against the said judgment and order, he has filed the instant appeal. Crl. A. No. 541-DB of 2007 -2- 2. In this case, as per the prosecution version, on 14.11.2002, the police party headed by SI Jarnail Singh (PW.2) was present near Manarva Hotel, Sector 32, Chandigarh, in connection with patrolling, where SI Jarnail Singh received a secret information that a person, namely Passing Lama (appellant) was coming from Kullu and he will board a taxi in front of Sunbeam Hotel, Sector 22, Chandigarh, for Delhi. SI Jarnail Singh then sent a written information (Ex.PA) to DSP Central. In the meantime, one Surinder Kumar son of Chuni Lal (PW.4) met the police party and after disclosing all the facts of the case to him, he was associated in the police party. Thereafter, the police party along with Surinder Kumar went to Sunbeam Hotel. The secret informer was also with them, who pointed out towards the accused who was carrying a jute sack on his head. SI Jarnail Singh caught hold the accused and on enquiry, he disclosed his name as Passng Lama. SI Jarnail Singh then served a notice (Ex.PB) upon the accused asking him as to whether he desired to get himself searched by a Gazetted Officer or by a Magistrate. He expressed his desire to get himself searched before a Gazetted Officer. Accordingly, a wireless message was sent to DSP, Central, Shri Satnam Singh Randhawa (PW/13), who reached the spot and again served a notice (Ex.PC) upon the accused as to whether they would like to get himself searched by him or by a Magistrate. The accused had consented to be searched by DSP. During the search, 35 Kgs. of charas contained in a polythene bag was recovered from the possession of the appellant vide recovery memo Ex.PD, which was attested by Surinder Crl. A. No. 541-DB of 2007 -3- Kumar (PW.4), Kuldeep Singh SI and DSP Shri Satnam Singh Randhawa (PW.13). 500 grams of charas was separated as sample, and its parcel was prepared. Separate parcel of the remaining 34 Kgs. 500 grams of charas, recovered from the appellant, was prepared. Both the parcels were sealed with the seal bearing impression J.S. The sample parcel was sent to CFSL, Sector 36, Chandigarh for analysis. As per the report of the CFSL (Ex.PO), the sample was of charas. 3. After completion of investigation, the challan was filed against the accused and charge under Section 20 of the NDPS Act was framed, to which he did not plead guilty and claimed trial. 4. In support of its case, the prosecution examined 14 witnesses. 5. PW.1 Inspector B.S. Negi is the formal witness. PW.2 Inspector Jarnail Singh is the Investigating Officer in the case and he has fully supported the case of the prosecution. PW.3 C. Yashpal, Draftsman, is the formal witness, who prepared the scaled map Ex.PF. PW.4 Surinder Kumar is the private witness, in whose presence the recovery was effected. PW.5 HC Balbir Singh and PW.6 HC Kulwant Singh are the formal witness. PW.7 C. Budh Singh took secret information (Ex.PA) to DSP SS Randhawa. PW.8 SI Pala Ram, who partly investigated the matter, has also fully supported the case of the prosecution. PW.9 C. Ranjit Singh, PW.10 C. Swaran Singh, PW.11 Krishan Lal and PW.12 ASI Yaguwant Singh are also the formal witnesses. PW.13 DSP S.S. Randhawa is the witness, in whose presence the recovery was effected. Crl. A. No. 541-DB of 2007 -4- 6. In his statement under Section 313 Cr.P.C., the accused denied all the incriminating evidence appearing against him and pleaded innocence. However, he did not lead any evidence in his defence. 7. After considering the evidence on record and hearing the arguments of learned counsel for the parties, the trial court vide judgment and order dated 15.5.2007 convicted and sentenced the appellant under Section 20 of the NDPS Act, as indicated above. 8. Learned counsel for the appellant tried to assail the impugned judgment of conviction on various grounds. However, after arguing for some time, when he could not point any illegality or infirmity in the judgment of conviction, he prayed that keeping in view the fact that the appellant is the first offender and no other case is pending against him as well as the fact that he is the sole bread earner of the family, having 4 daughters of marriageable age, a lenient view be taken with regard to the sentence awarded to him and the minimum sentence prescribed for the offence under Section 20 of the NDPS Act be awarded. In support of his submission, learned counsel relies upon a decision of the Hon'ble Supreme Court in Balwinder Singh and others v. Asstt. Commr., Custom and Central Excise, AIR 2005 Supreme Court 2917, wherein while taking into consideration the fact that the accused in that case was the first offender, the sentence of imprisonment for a period of 14 years was reduced to 10 years. 9. Learned counsel for the respondent-State argued that in the instant case, the trial court while taking into consideration the evidence led Crl. A. No. 541-DB of 2007 -5- by the prosecution, which clearly establish the alleged offence against the appellant, has rightly convicted him for the offence under Section 20 of the NDPS Act and sentenced him to undergo rigorous imprisonment for a period of 12 years and to pay a fine of Rs. 1,50,000/-, in default to further undergo rigorous imprisonment for a period of three years, as the recovery of 35 Kgs. of charas from the conscious possession of the appellant has been proved. However, he has not disputed the fact that the appellant is the first offender and no case is pending against him as well as the fact that he is having four daughters. 10. After hearing the arguments of learned counsel for the parties and going through the record of the case, we do not find any illegality or infirmity in the judgment of conviction passed by the trial court. During the course of arguments, learned counsel for the appellant could not point out any illegality or infirmity in the impugned judgment. He has only prayed for reduction of sentence to the minimum prescribed for the offence. In the facts and circumstances of the case, we have considered this submission of learned counsel for the appellant and have gone through the order of sentence passed by the trial court. 11. It is the duty of the Court to award proper and reasonable sentence to the accused having regard to the nature of the offence and the manner in which it was committed. It is a difficult task to balance the sentence and the crime committed. The social impact of the crime, particularly where it relates to offences relating to narcotic drugs or Crl. A. No. 541-DB of 2007 -6- psychotropic substances, cannot be lost sight. On the other hand, the other mitigating factors, i.e. the accused is first offender, no other case is pending against him, he has to maintain a big family, cannot be ignored. In this regard, the Hon'ble Supreme Court in Union of India v. Kuldeep Singh, AIR 2004 Supreme Court 827, made the following observations : “Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.” 12. In light of the aforesaid principle, we have considered the submissions made by learned counsel for the appellant regarding reduction of sentence of imprisonment from 12 years to 10 years. It is not disputed that the appellant is the first offender and no other case is pending against him. He is having four daughters of marriageable age and is the only bread earner in the family. In these facts and circumstances, we are of the opinion that the ends of justice will be met if the sentence of rigorous imprisonment Crl. A. No. 541-DB of 2007 -7- for a period of 12 years is reduced to 10 years, which in our opinion will be just and appropriate sentence. In a similar situation, in Balwinder Singh's case (supra), in which 175 Kg. of heroin and 39 Kg. of opium of foreign origin was recovered, the Hon'ble Supreme Court by taking into account the fact that the accused in that case was the first offender, reduced the sentence of imprisonment for a period of 14 years to 10 years. However, in the instant case, the recovery is 35 Kg. of charas. 13. Accordingly, conviction of the appellant under Section 20 of the NDPS Act is upheld and the sentence of imprisonment for a period of 12 years awarded to the appellant by the trial court is modified and the same is reduced to 10 years. However, the sentence of fine is maintained, but the sentence of imprisonment in default of payment of fine is reduced from three years to two years. . 14. In view of the aforesaid modification in the sentence, the appeal filed by the appellant is dismissed. ( SATISH KUMAR MITTAL ) JUDGE March 19, 2010 ( JORA SINGH ) ndj JUDGE