Right of appeal from a judgment of conviction affecting the liberty of a person falls under the expansive definition of Article 21: High Court of Delhi

IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.A. 245 2021 & CRL.M.(B) 1071 2021 & CRL.M.A. Reserved on: 07.02.2022 Date of Decision: 23.02.2022 IN THE MATTER OF: MOHAMED ANAS NARCOTICS CONTROL BUREAU Through: Mr. A. Raj Narayanan Advocate ..... Appellant Through: Mr. Rajesh Manchanda SPP for HON BLE MR. JUSTICE MANOJ KUMAR OHRI VIA VIDEO CONFERENCING) JUDGMENT MANOJ KUMAR OHRI J. The present appeal has been preferred under Section 374 Cr.P.C. on behalf of the appellant assailing the judgment on conviction dated 11.06.2021 and the order on sentence dated 16.06.2021 passed by the learned Special JudgePatiala House Courts New Delhi in SC No. 64 2019. Vide the impugned judgment the appellant was convicted for the offence punishable under Section 20(b)(ii)(B) read with Section 23(b) of the Narcotic Drugs and Psychotropic Substances Act 1985read with Section 23(b) of the NDPS Act vide order dated 09.07.2019 to which he pleaded not guilty and claimed trial. Learned counsel for the appellant submitted that the recovery from the appellant is stated to be of 200 grams of charas which constitutes an intermediate quantity. He further submitted that the appellant has been in judicial custody since 04.12.2018 and has undergone more than 03 years of the sentence. It was also submitted that the fine amount of Rs.50 000 has already been deposited on behalf of the appellant which fact is corroborated by the receipt issued in the regard a copy of which has been placed on record. It was also stated that the appellant was taken into custody on Digitally Signed By:SANGEETA ANAND 04.12.2018 at which time his wife was pregnant. In due course the couple was blessed with a baby boy who as on date is about 03 years old. It was further stated that in the year 2021 the appellant’s father expired as a result whereof it has become incumbent upon the appellant to provide for his minor son and wife. Reference was made in this regard to the copies placed on record of the birth certificate of the appellant’s child and the death certificate of the appellant’s father. On the basis of the aforesaid it was prayed that the appellant is not pressing the appeal on merits however considering the period of his incarceration and the fact that he is the sole bread winner of his family which includes a minor child his sentence may be modified to the period already undergone. Learned counsel for the respondent NCB on the other hand supported the impugned judgment and order on sentence. It was submitted that the appellant is a foreign national who was apprehended while he was in process of taking the seized contraband substance out of India and thus no leniency may be shown in respect of his sentence. Even though the appellant does not wish to press the appeal on merits I have heard the learned counsels for the parties on merits as well and gone through the material placed on record considering the decision of the Supreme Court in Jeetu alias Jitendra and Others v. State of Chhattisgarh reported as 11 SCC 489 which was recently cited by this Court in Liyakat Ali v. State reported as 2019 SCC OnLine Del 11186 in the following terms: “5. In the case of Jeetu v. State of Chhattisgarh reported as11 SCC 489 while placing reliance on the case of State of Uttar Pradesh v. Chandrika reported as8 SCC 638 it was held as under: “8 .It is settled law that on the basis of plea bargaining the court cannot dispose of the criminal cases. The Court has to Digitally Signed By:SANGEETA ANAND decide it on merits. If the accused confesses his guilt an appropriate sentence is required to be imposed. Further the approach of the court in appeal or revisions should be to find out whether the accused is guilty or not on the basis of the evidence on record. If he is guilty an appropriate sentence is required to be imposed or maintained. If the appellant or his counsel submits that he is not challenging the order of conviction as there is sufficient evidence to connect the accused with the crime then also the court s conscience must be satisfied before passing the final order that the said concession is based on the evidence on record. In such cases sentence commensurating with the crime committed by the accused is required to be imposed. Mere acceptance or admission of the guilt should not be a ground for reduction of sentence. Nor can the accused bargain with the court that as he is pleading guilty the sentence be reduced.” Emphasis Supplied] 6. Further in the case of Jeetuit was held as under— “20. In Padam Singh v. State of U.P1 SCC 621 it has been held that in an appeal against conviction the appellate court is under duty and obligation to look into the evidence adduced in the case and arrive at an independent conclusion. 21. At this stage we may refer with profit to a two Judge Bench decision in Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. 2007) 6 SCC 528 wherein this Court after referring to the in Babu Rajirao Shinde v. State of Maharashtra3 SCC 337 and Siddanna Apparao Patil v. State of Maharashtra 1 SCC 547 opined thus had reached the I.G.I. Airport on 04.12.2018 at 23:40 hours. His testimony is cumulative to the testimony of Sh. Rajesh Kumar Yadav Investigating Officer. SI Sanjeev Kumar Sharma CISF I.G.I. Airport was examined as PW 6. He deposed that on 04.12.2018 he was posted as SHA at the I.G.I. Airport and his duty was at X ray machine No. 8. While performing his duty he noticed a doubtful image in a baggage that came through the tunnel and accordingly the same was referred for physical check up which was to be conducted by Sh. Robin Lakra. When the passenger concernedwas called near the baggage for the purpose of physical check up he refused. As a result the instance was brought to the notice of the area in chargeand suspecting that the baggage contained some narcotic substance the Digitally Signed By:SANGEETA ANAND passenger was asked to stand on a side till further order. Eventually the NCB team alongwith Inspector arrived and introduced itself to the passenger. After taking introduction of the passenger as well notice under Section 50 NDPS Act was served upon him. He was explained his legal right to be searched in the presence of a Gazetted Officer Magistrate if he so desired which was waived by the passenger and an endorsement to the effect was given by him on the notice. During the body search of the passenger nothing incriminating was found or recovered. However on checking of the blue colour pithu bag belonging to him an artificial cavity was noticed in the bottom. On cutting open the same some solid substance was found wrapped with brown tape which tested positive for charas. Sh. Robin Lakra CISF I.G.I. Airport was examined as PW 10. His testimony is cumulative to the statement of SI Sanjeev Kumar Sharmain that regard was prepared on 24.12.2018 and forwarded to NCB. 17. Dr. Purnima Mishra Chemical Engineer CRCL was examined as Digitally Signed By:SANGEETA ANAND PW 3. She deposed that the relevant sample was analysed by chromatography instrumental and microscopic analysis and from each the sample tested positive for charas. On the basis of the examination the report of analysis of sample was prepared which is Ex.PW1 2. 18. At the time of apprehension of the appellant one mobile phone was also recovered from his possession and sent for forensic examination. In this regard the prosecution examined Dr. Ranjeet Kumar Singh Managing Director of SIFS India Forensic Science Laboratory as PW 4. The said witness proved his Report as Exhibit PW 4 2 which was exhibited alongwith printout of images chat and pen drive. A perusal of the documents exhibited as Ex.PW 4 2 would show images of charas as well as the prices of different types of heroin in Afghanistan the prices of 1 kg. of heroin in other than U.S. dollars the prices of heroin opium and hashish at consumer level and the appellant’s communication with foreign nationals regarding inquiry about hash price. 19. The appellant in his statement recorded under Section 313 Cr.P.C. stated that he has been falsely implicated in the present case. From a perusal of the case records it is borne out that on apprehension of the appellant his bag was found to contain some suspicious substance. On that basis information was given to NCB and the search proceedings conducted after due formalities. From the testimonies of SI Rajesh Kumar Yadav & Sh. Virender Kumar PW 2) it is established that the appellant’s bag was found to contain an artificial cavity at the bottom from which 200 grams of charas wrapped in brown adhesive tape were recovered. The CRCL report duly corroborates the factum of recovery of charas from the baggage of the appellant. In terms of Section 20(b)(ii) of the NDPS Act the quantity Digitally Signed By:SANGEETA ANAND seized from the appellant is intermediate in nature. In the trial suspicion was raised regarding the presence of SI Sanjeev Kumar Sharma & Sh. Robin Lakra at the relevant time their being interested witnesses. However the Trial Court observed that the appellant had entered security check at about 09:30 p.m. Thereafter he had kept his baggage for scanning and gone for physical check up. When the appellant went to pick up his bag the same could not be found and later two officers came with his bag. In this backdrop and considering the testimonies recorded the Trial Court opined that the aforesaid witnesses being officials of CISF were posted at the security check and performing their duty of checking luggage and frisking of passengers. In the opinion of this Court the presence of the aforesaid witnesses at the spot was rightly believed by the Trial Court. In respect of issuance of notice under Section 50 NDPS Act the Trial Court while relying on the decision of the Supreme Court in Than Kunwar v. State of Haryana reported as5 SCC 260 observed that the recovery having taken place from the baggage of the appellant Section 50 NDPS Act was not required to be complied with. Even otherwise the appellant in the present case was duly served with a notice under Section 50 NDPS Act in response to which he denied being taken to any Gazetted Officer Magistrate for his search. It was noted that Section 57 NDPS Act was also duly complied with in the present case inasmuch as the arrest report was forwarded to the Senior Officer. 23. After appreciating the testimonies of the witnesses and finding the same to be unimpeachable and in view of the decision of the Supreme Court in Mohan Lal v. State of Rajasthan reported as6 SCC 222 this Court also concludes that the presumptions of culpable mental state and conscious possession under Sections 35 & 54 of the NDPS Act arise Digitally Signed By:SANGEETA ANAND against the appellant. In light of the discussion undertaken hereinabove I am of the opinion that the charge against the appellant has been established beyond reasonable doubt and concur with the conclusion arrived at by the learned Special Judge. Accordingly the impugned judgment on conviction is upheld. 25. Be that as it may it is noted that a prayer has been made to release the appellant on the period already undergone as his father has expired in the year 2021 and his family including his minor child and wife depend on him. 26. As per the Nominal Roll of the appellant placed on record he had undergone 02 years 09 months & 24 days as on 28.09.2021 and the unexpired portion of his sentence was 01 year 02 months & 06 days IFP). The overall jail conduct of the appellant is stated to be satisfactory. Further the fine imposed on the appellant has already been deposited which fact is not only corroborated by the copy of Receipt No. E 0390805 placed on record but also finds mention in the order dated 02.02.2022 passed by the learned ASJ Special Judge. 27. Considering the aforesaid the fact that the appellant as on date has undergone more than 03 years out of a total sentence of 04 years and that the recovery from him was of 200 grams of charas which constitutes an intermediate quantity it is deemed apposite to modify the sentence of the appellant to the period already undergone by him. 28. The appeal is dismissed insofar as the impugned judgment on conviction is concerned however the impugned order on sentence stands modified to the aforesaid extent. Miscellaneous applications are disposed of as infructuous. 29. The FRRO shall take all necessary steps for deportation of the Digitally Signed By:SANGEETA ANAND appellant to his native country i.e. Sri Lanka within 30 days from the date of this judgment unless he is required in any other case. 30. A copy of the judgment be communicated electronically to the concerned Trial Court as well as to the concerned Jail Superintendent for information and necessary compliance. 31. A copy of the judgment be also communicated to the appellant through the concerned Jail Superintendent. FEBRUARY 23 2022 JUDGE Digitally Signed By:SANGEETA ANAND 

Summary: In an appeal against conviction, the appellate court is under duty and obligation to look into the evidence adduced in the case and arrive at an independent conclusion. Right of appeal from a judgment of conviction affecting the liberty of a person keeping in view the expansive definition of Article 21 is also a fundamental right. Right of appeal, thus, can neither be interfered with nor impaired, nor can it be subjected to any condition and the same was upheld by High Court of Delhi through the learned bench led by Justice Manoj Kumar Ohri in the case of MOHAMED ANAS vs. NARCOTICS CONTROL BUREAU [CRL.A. 245/2021] on 23.02.2022. The facts of the case are that a charge sheet was filed and a charge was framed against the appellant under Section 20(b)(ii)(B) read with Section 23(b) of the NDPS Act vide to which he pleaded not guilty and claimed trial. All recovered material along with samples, passport of accused, e-ticket, cancelled boarding pass, ticket information and visa confirmation documents were taken in possession. Seizure and sealing proceedings were completed. The recovery from the appellant is stated to be of 200 grams of charas, which constitutes an intermediate quantity. Therefore, present appeal has been preferred under Section 374 Cr.P.C. on behalf of the appellant assailing the judgment on conviction. The appellant’s counsel prayed that the appellant isn’t pressing the appeal on merits, however, considering the period of his incarceration and the fact that he is the sole bread-winner of his family, which includes a minor child, his sentence may be modified to the period already undergone. The respondent’s counsel submitted that the appellant is a foreign national, who was apprehended while he was in process of taking the seized contraband substance out of India, and thus no leniency may be shown in respect of his sentence. Considering the aforesaid, the fact that the appellant has undergone more than 03 years out of a total sentence of 04 years and that the recovery from him was of 200 grams of charas, which constitutes an intermediate quantity, the Court modified the sentence of the appellant to the period already undergone by him. The Court observed, “In an appeal against conviction, the appellate court is under duty and obligation to look into the evidence adduced in the case and arrive at an independent conclusion. Right of appeal from a judgment of conviction affecting the liberty of a person keeping in view the expansive definition of Article 21 is also a fundamental right. Right of appeal, thus, can neither be interfered with nor impaired, nor can it be subjected to any condition.”