Criminal Appeal No. 1832-SB of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 1832-SB of 2003 Date of Decision: 19.04.2010 The State of Punjab. ... Appellant Versus 1. Jiwan Ram, aged 33 years, son of Ram Lal son of Ram Chand, Labourer, resident of village Sardarewala, P.S. Ratia (Haryana). 2. Maddi Ram, aged 29 years, son of Jai Ram, Labourer, resident of village Sardarewala, P.S. Ratia (Haryana). 3. Gokal Ram, aged 28 years, son of Ram Sarup son of Bhagwan Singh, Labourer, resident of village Sardarewala, P.S. Ratia (Haryana). 4. Pappu Ram alias Bhola, aged 22 years, son of Nand Ram, Labourer, resident of village Sardarewala, P.S. Ratia (Haryana). 5. Tota Singh, aged 17 years, son of Kahri Singh, son of Kartar Singh, Labourer, resident of village Sardarewala, P.S. Ratia (Haryana). 6. Amarjit Ram, aged 20 years, son of Babu Ram son of Sohan Ram, Labourer, resident of village Sardarewala, P.S. Ratia (Haryana). 7. Sohan Singh, aged 40 years, son of Banta Singh, Labourer, resident of Heerawala, P.S. Sadar, Mansa. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Jaspreet Singh, AAG, Punjab, for the appellant – State. Mr. T.S. Sangha, Advocate, with Mr. Narinder Singh, Advocate, for respondents No. 1 to 6. Mr. Narinder Singh, Advocate, Amicus-Curiae, for respondent No. 7. Criminal Appeal No. 1832-SB of 2003 2 SHAM SUNDER, J. * * * * This appeal is directed against the judgment of conviction and the order of sentence dated 05.06.03, rendered by the Judge, Special Court, Mansa, vide which, he convicted the accused (now respondents), for the offence, punishable under Section 15 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be called as the 'Act' only) and sentenced them, as under, for having been found in possession of 10 bags, each containing 36 kgs poppy husk, falling within the ambit of commercial quantity:- Names of the accused (now respondents) Offence for which convicted Sentence awarded 1 2 3 (a) Tota Singh (i) Under Section 15 of the Act. To undergo rigorous imprisonment for a period of 09 months, and, to pay a fine of Rs. 1,000/-, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of 15 days. (b) (c) (d) (e) (f) (g) Jiwan Ram Maddi Ram Gokal Ram Pappu Ram alias Bhola Amarjit Ram Sohan Singh (ii) Under Section 15 of the Act. To undergo rigorous imprisonment for a period of 03 years and 06 months each, and, to pay a fine of Rs. 1,000/- each, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of 15 days each. Criminal Appeal No. 1832-SB of 2003 3 2. The facts, in brief, are that, on 07.12.99, Pritam Singh, Assistant Sub Inspector, alongwith some other Police officials, was on patrol duty and going towards village Gehle from village Nangal Khurd, in a government canter, being driven by Rulda Singh, Constable, and when the Police party, reached near the bridge of the canal minor, on the road, leading to village Gehle, from Nangal Khurd, the accused, were seen sitting, on ten gunny bags, in the slope of the pavement thereof. In the meanwhile, one Gurbachan Singh son of Lal Singh, was joined in the Police party, as an independent witness. Thereafter, the accused, were overpowered on suspicion. On inquiry, the accused disclosed their names and parentage as also addresses. On search of the bags, in the presence of Baljit Singh, Deputy Superintendent of Police, Sub Division Budhlada, who was called to the spot, 360 kgs poppy husk, was recovered. A sample of 100 gms, from each bag, was separated, and the remaining poppy husk, was kept in the bags. The samples and the bags, containing the remaining poppy husk, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Personal search of the accused was conducted. From Jiwan Ram, accused, a lady HMT watch and currency notes of Rs. 500/-, from Gokal Ram, accused, an HMT watch, from Tota Singh, accused, an HMT watch, and, from Amarjit Ram, accused, currency notes of Rs. 200/- were recovered. However, on personal search of Pappu and Sohan Singh, accused, nothing was recovered. Ruqa was sent to the Police Station, on the basis whereof, the first information report was registered. Site plan of the place of Criminal Appeal No. 1832-SB of 2003 4 recovery was prepared. The accused, were arrested. After the completion of investigation, they were challaned. 3. On their appearance, in the Court, the accused, were supplied the copies of documents, relied upon by the prosecution. 4. Charge under Section 15 of the Act, was framed against the accused, which was read-over and explained to them, to which, they pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Gurbakhshish Singh, Constable (PW1), Paramjit Singh, Sub Inspector (PW2), Pritam Singh, Assistant Sub Inspector (PW3), Investigating Officer, Pritpal Singh, Assistant Sub Inspector (PW4), and, Baljit Singh, Deputy Superintendent of Police (PW5), a witness to the recovery. Thereafter, the prosecution evidence was closed. 6. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. It was stated by them that nothing incriminating was recovered from them. It was further stated by them that they had been falsely implicated, in the instant case. They, however, did not lead any evidence, in defence, and closed the same. 7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 8. Feeling aggrieved, the instant appeal, has been filed by the appellant – State of Punjab, for the enhancement of sentence. Criminal Appeal No. 1832-SB of 2003 5 9. I have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 10. The Counsel for the appellant – State of Punjab, submitted that, once the Court, came to the conclusion, that the accused (now respondents), committed the offence, punishable under Section 15 of the Act, for having been found in possession of 10 bags, each containing 36 kgs poppy husk, which fell within the purview of commercial quantity, it could not award sentence, less than the minimum prescribed i.e. rigorous imprisonment, for a period of 10 years, and a fine of Rs. 1 lac. He further submitted that, the trial Court, acted against the mandatory provisions of Section 15(c) of the Act, by awarding the sentence, lesser than the minimum prescribed, for the commission of offence, in question. He further submitted that, while maintaining the judgement of conviction, rendered by the trial Court, the sentence, awarded to them (the accused) by it (trial Court), be enhanced, to the minimum, prescribed, for the commission of offence, punishable under Section 15(c) of the Act. 11. On the other hand, the Counsel for respondents No. 1 to 7, submitted that, no appeal, against the judgement of conviction and the order of sentence, was filed, by the accused (now respondents). He further submitted that Tota Singh, respondent No. 5, was 16 years of age, at the time of the alleged recovery, and, as such, he could not be awarded sentence, by the trial Court. He further submitted that the sentence, awarded to Tota Singh, be set aside, and the case, be remanded to the Juvenile Justice Court, presided over by the Principal Criminal Appeal No. 1832-SB of 2003 6 Magistrate, for passing appropriate orders, under the Juvenile Justice (Care and Protection of Children) Act, 2000. He could not defend the order of the trial Court, vide which, the remaining respondents, were awarded sentence, less than the minimum prescribed, for the commission of offence, punishable under Section 15(c) of the Act. 12. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the appeal, qua the sentence, awarded to respondents No. 1 to 4, 6 and 7, is liable to be accepted, in the manner, depicted hereinafter, whereas, the appeal, qua the order of sentence, awarded to Tota Singh, respondent No. 5, a juvenile in conflict with law is liable to be accepted and the case qua him deserves to be sent to the Juvenile Justice Board, for passing appropriate orders. The trial Court, after duly scrutinizing the evidence, produced by the prosecution, was right, in coming to the conclusion, that the accused (now respondents),were found in conscious possession of ten bags, each containing 36 kgs poppy husk, and, thus, committed the offence, punishable under Section 15(c) of the Act. The Court, is required to act, in accordance with the mandatory provisions of law, and not, contrary to the same. Admittedly, the recovery of poppy husk, effected from the accused, fell within the ambit of commercial quantity. Section 15(c) of the Act, reads as under:- “Where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which Criminal Appeal No. 1832-SB of 2003 7 may extend to two lakh rupees: Provided that the Court may, for reasons to be recorded in the judgement, impose a fine exceeding two lakh rupees.” The plain reading of the provisions of Section 15(c) of the Act, clearly goes to reveal, that where the contravention involves commercial quantity, the accused, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to twenty years, and shall also be liable to fine, which shall not be less than one lakh rupees, but which may extend to two lakh rupees. A proviso, has also been engrafted to Section 15(c) of the Act, that for the reasons to be recorded, in the judgement, the Court, may impose a fine exceeding two lakh rupees. Instead of even awarding the minimum prescribed sentence of 10 years and a fine of Rs. 1 lac, the trial Court, on the other hand, directed respondents No. 1 to 4, 6 and 7, to undergo rigorous imprisonment, for a period of 03 years and 06 months each, and to pay a fine of Rs. 1,000/- each, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of 15 days each. The order, awarding sentence to respondents No. 1 to 4, 6 and 7, less than the minimum prescribed, was completely and wholly contrary to the mandatory provisions of Section 15(c) of the Act. Section 15(c) of the Act, does not provide that for special and adequate reasons, the trial Court, could award the sentence, lesser than the minimum prescribed. The order of sentence, qua respondents No. 1 to 4, 6 and 7, thus, being contrary to the mandatory provisions of Section Criminal Appeal No. 1832-SB of 2003 8 15(c) of the Act, is liable to be modified, and the sentence, deserves to be enhanced to the minimum, as prescribed by Section 15(c) of the Act. 13. Coming to the case of Tota Singh, respondent No. 5, it may be stated here that, it is evident, from the record, that he was granted bail, by this Court, on the ground, that he was 16 years of age, at the time of the recovery. This fact is also evident, from the judgement of the trial Court. It means that, Tota Singh, was below 18 years of age, at the time of commission of offence. According to Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000, a juvenile or child means a person who has not completed eighteenth year of age. According to Section 2(1) of the Act, “Juvenile in conflict with law” means a juvenile, who is alleged to have committed an offence. Section 20 of the Juvenile Justice (Care and Protection of Children),Act 2000, which came into force on 01.04.20001 reads as under:- “20. Special provision in respect of pending case.- Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any Court in any area on the date on which this Act comes into force in that area, shall be continued in that Court as if this Act had not been passed and if the Court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence. 14. Amendment of section 20. - In section 20 of the principal Act, the following proviso and explanation shall be inserted namely:- Criminal Appeal No. 1832-SB of 2003 9 “Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile. Explanation- In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law,in any Court, the determination of juvenility of such a juvenile shall be in terms of clause (i) of Section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.” In view of the explanation added to Section 20 of the Juvenile Justice (Care and Protection of Children), Act, 2000 by amendment, which became operative w.e.f. 20.08.2006, the benefit to all offenders who were below 18 years of age, on the date of occurrence, and whose claims were pending before the trial or the appellate Courts is required to be extended. It means that the accused being below 18 years of age, on the date of occurrence was entitled to the benefit, conferred by the explanation to Section 20 of the Act ibid. Similar principle of law, was laid down in Balu @ Bakthvatchalu v. State of Tamilnadu, 2008(2) RCR (Crl.) 164(SC) and Sandeep v. State of Haryana, 2009(1), RCR (Criminal), 392, a case decided a Division Bench of this Court. Tota Singh, respondent No. 5, is, thus, entitled to be extended the benefit of the provisions of Section 20 of the Act (as amended upto date). He being juvenile, in conflict with law, in accordance with the provisions of Section 20 of the Juvenile Justice (Care and Protection of Children) Criminal Appeal No. 1832-SB of 2003 10 Act, 2000, substantive sentence could not be awarded, to him, by the trial Court. No doubt, Tota Singh, has not filed any appeal, against his conviction and sentence, yet in the appeal, filed by the State of Punjab, for enhancement of sentence, qua him, this Court, has come to the conclusion, that he was awarded sentence, in transgression of the mandatory provisions of Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000, and, as such, the order, awarding him sentence, by the trial Court, was without jurisdiction. The judgement of conviction, recorded qua Tota Singh, respondent No. 5, is liable to be upheld. The sentence, awarded to him, by the trial Court, deserves to be set aside. 15. No other point, was urged, by the Counsel for the parties. 16. For the reasons recorded above, Criminal Appeal No. 1832- SB of 2003, filed by the State of Punjab, is accepted, qua Jiwan Ram, Maddi Ram, Gokal Ram, Pappu Ram alias Bhola, Amarjit Ram, and, Sohan Singh, respondents, in the manner, that while maintaining the judgement of conviction, recorded against them, by the trial Court, the sentence, awarded to them, is modified, and they shall undergo rigorous imprisonment, for a period of 10 years each, and pay a fine of Rs. 1 lac each, and, in default of payment thereof, they shall further undergo rigorous imprisonment, for a period of 06 months each. If they are on bail, their bail bonds shall stand cancelled. They are directed to be taken into custody. 17. The appeal, filed by the appellant, qua Tota Singh, juvenile in conflict with law, is disposed of, by partly accepting the same, in the Criminal Appeal No. 1832-SB of 2003 11 manner, that the judgement of conviction, recorded by the trial Court, qua him, is maintained. The order of sentence, passed by the trial Court, qua him, is set aside. Tota Singh, respondent No. 5, is directed, to appear, before the Juvenile Justice Board, Mansa, presided over by the Principal Magistrate, on 26.05.2010, at 10.00 AM sharp, which shall pass the orders, in relation, to him, in accordance with the provision of the Juvenile Justice (Care and Protection of Children) Act, 2000. 18. The Chief Judicial Magistrate, shall take necessary steps to comply with the judgment with due promptitude, qua Jiwan Ram, Maddi Ram, Gokal Ram, Pappu Ram alias Bhola, Amarjit Ram, and, Sohan Singh, respondents, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and submit compliance report, within 02 months. 19. The Registry is directed to comply with the judgement forthwith, and send the copies thereof, to the Courts concerned, immediately, so as to reach them, within 20 days, from today positively. 19.04.2010 (SHAM SUNDER) AMODH JUDGE