Crl. Appeal 540/2007 Page 1 of 5 * IN THE HIGH COURT OF DELHI AT NEW DELHI 39. + CRL.A. 540/2007 Date of Decision:25.02.2009 VIJAY PAL ..... Appellant Through Mr. Sunil K. Mittal, Mr. Shyam Sharma, Mr. Kuldeep Singh, Mr. Kshitij Mittal, adv. versus STATE ..... Respondent Through Mr. Navin Sharma, APP CORAM: HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes : MOOL CHAND GARG,J(ORAL) 1. By this appeal the appellant assails the judgment passed by the learned Special Judge, NDPS, New Delhi in Sessions Case No. 70A/2004 wherein the petitioner was sent for trial after registration of FIR No.80/2003 at P.S. Narcotics Branch for having committed a crime under Section 18(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as „the said Act‟) because he was found with six kilogram of opium. After the challan Crl. Appeal 540/2007 Page 2 of 5 was filed charge was framed against the appellant under Section 18(c) of the said Act which is also reflected from the order framing charge in the trial Court record. 2. After the evidence was recorded, the learned trial Court convicted the appellant under Section 18(b) of the said Act as is apparent from the reading of para 29 of the Judgment which reads as under: “29. I, therefore, am of the opinion that the prosecution has succeeded in proving its case beyond reasonable doubt against the accused Vijay Pal that he was found in possession of 6 Kg. of Opium. In view thereof, I convict accused Vijay Pal for committing an offence punishable U/s 18(b) of NDPS Act.” 3. As per the order passed on sentence dated 13.07.2007, the appellant has been sentenced to undergo RI for a period of 10 years and was imposed a fine of Rupees One lac under Section 18(b) of the said Act and in default to undergo S.I. for six months. According to the appellant his conviction by the trial Court for an offence under Section 18(b) of the said Act instead of Section 18(c) is contrary to the provisions contained under Section 222 of Cr.P.C. which provides as under: 222- When offence proved included in offence charged:- (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. Crl. Appeal 540/2007 Page 3 of 5 (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may he convicted of the minor offence, although he is not charged with it. (3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged. (4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied. 4. It is submitted that the punishment provided in the said Act for the commission of an offence under Section 18(c) is R.I. for a term which may extend to 10 years and a fine which may extend to Rupees One lac whereas with respect to the offence under Section 18(b) the punishment which can be imposed is of a minimum sentence of 10 years R.I. which may also extend to 20 years and a minimum fine of Rupees One lac is also to be imposed which can also be extended to Rupees two lacs. 5. It is, therefore, submitted by the learned counsel for the appellant that the order convicting the appellant and sentencing him under Section 18(b) of the said Act is illegal and contrary to the provisions. He also submits that he has already undergone more than six years of imprisonment and, therefore, there is no justification to keep him in jail. 6. Learned counsel says that he will be satisfied if the conviction of the appellant is modified to conviction under Section 18(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and he is Crl. Appeal 540/2007 Page 4 of 5 granted certain relief by this Court on the question of sentence by reducing period of sentence awarded to him to the period already undergone. 7. Learned APP submits that petitioner may be right but the appellant is guilty of a very serious charge and he has been found to be in possession of six kilograms of opium and, therefore, even though the Special Judge charged him under Section 18(c) of the said Act but he has been rightly convicted. 8. However, having gone through the record and the order framing the charge, it is apparent that the appellant was to face a charge under Section 18(c) of the said Act which also reflects from the judgment delivered by the trial Court but without any explanation and without giving any reason or even an opportunity to the appellant to face the charge under Section 18(b) of the said Act. The trial Court has convicted the appellant under Section 18(b) of the said Act which is illegal and contrary to Section 222 of Cr.P.C. which applies as far as the procedure is concerned. 9. In these circumstances, the order of conviction and sentence awarded to the appellant are modified to the extent that the appellant is convicted under Section 18(c) of the said Act and the sentence awarded to him is reduced to the period already undergone. In case the appellant is not wanted in any other case he may be released forthwith. 10. With these directions, the appeal is disposed of. Crl. Appeal 540/2007 Page 5 of 5 11. A copy of the order be sent to the Jail Superintendent for information and compliance by the Registrar General of this Court on Fax. 12. Trial Court record be sent back immediately. MOOL CHAND GARG,J FEBRUARY 25, 2009 anb