Shiv Kumar vs Stat Of Haryana

Court
Punjab and Haryana High Court


CRA-S-1036-SB-2005 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
113
CRA-S-1036-SB-2005
Date of decision : 04.11.2026
SHIV KUMAR
..... APPELLANT
VERSUS
STATE OF HARYANA
..... RESPONDENT
CORAM: HON’BLE MR. JUSTICE SURYA PARTAP SINGH
Present : Mr. Vipul Thakur, Advocate for
Mr. Nischal Chetanya Manchanda, Advocate
for the appellant.
Ms. Deepali Verma, Asstt. A.G. Haryana.
*
SURYA PARTAP SINGH , J .
The present appeal has been filed by the appellant against the
judgment of conviction and order of sentence dated 30.03.2005, passed by the
Court of learned Special Judge (designated under Narcotic Drugs and
Psychotropic Substances Act, 1985), hereinafter being referred to as ‘trial
Court’ only.
2. Briefly stating the facts emerging from record are that one FIR,
i.e. FIR No.167 dated 15.04.2001, was registered at the instance of ‘ASI
Ranbir Singh’. The abovesaid FIR was lodged for the commission of offence
punishable under Section-20 of ‘Narcotic Drugs and Psychotropic Substances
Act’, hereinafter being referred to as ‘NDPS Act’, Police Station Sadar,
Palwal. In the wake of abovementioned FIR, the investigation was taken up
by the police, and as an outcome of abovesaid investigation, the appellant
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CRA-S-1036-SB-2005 2
was sent to face trial before the learned trial Court.
3. The appellant participated in the abovementioned trial. By virtue
of judgment dated 30.03.2005, hereinafter being referred to as ‘impugned
judgment’, the abovesaid trial culminated into conviction of the appellant.
Thus, vide order dated 30.03.2005, on the point of quantum of sentence,
hereinafter being referred to as ‘impugned order’, following sentences were
awarded to the appellant:-
Offence under
Section Sentence
Rigorous imprisonment for a period of ten years and to
pay a fine of Rs.1,00,000/-. In default thereof to
undergo further imprisonment (rigorous) for a period of
two years.
20 of NDPS Act
4. In nut-shell, the facts emerging from record are that the FIR of
this case came into being at the instance of ‘ASI Ranbir Singh’, who reported
that on 15.04.2001, when he was leading a team of police officials, deputed
for patrolling duty at bus stand village Dhatir, he received a tip-off from a
reliable course that ‘Shiv Kumar’ (the appellant herein), was dealing in
narcotic materials and that he had gone to Sohna to bring charas and would
return in a bus. According to above-named police officer, relying upon the
abovementioned information, he, along with accompanying team, proceeded
towards Bus Stop Jaindapur. As per above-named police officer the appellant
carrying a polythene bag in his right hand alighted from a Haryana Roadways
Bus at Bus Stop of village Jaindapur. It was further reported by the above-
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CRA-S-1036-SB-2005 3
named police officer that on noticing the presence of the police party, the
appellant got nervous and started walking briskly. It was further reported by
the above-named police officer that when search of the above-named person
was conducted, 1 kg. of charas was recovered from his possession.
5. It was a case of the prosecution that pursuant to recovery of
abovementioned contraband, necessary formalities with regard to seizure &
sealing of contraband, lodging of FIR, and formal arrest of the accused were
completed, and further investigation taken up. According to prosecution,
during the course of investigation, the Investigating Officer inspected the
spot, prepared rough site plan of the place of recovery, and completed usual
formalities of investigation. Thereafter, the final report under Section 173 of
CrPC was filed in the Court.
6. Heard.
7. It has been contended on behalf of appellant that the impugned
judgment of conviction and order of sentence, passed by the learned trial
Court were perverse and unsustainable. According to learned counsel for the
appellant, merely on the basis of assumptions and presumptions, the
unreliable and self-contradictory evidence adduced by the prosecution was
believed by the learned trial Court. As per learned counsel for the appellant ,
the learned trial Court failed to apply judicial mind to the facts of the case,
and merely, on the basis of conjectures and surmises, the finding of
conviction of appellant, for the commission of offence under Section 20 of
NDPS Act, was recorded.
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CRA-S-1036-SB-2005 4
8. It has been further contended on behalf of appellant that the
learned trial Court ignored this cardinal principle of criminal jurisprudence
that the prosecution had to prove its case beyond the shadow of all reasonable
doubts. According to learned counsel for the appellant, the evidence adduced
by the prosecution was grossly inadequate to draw an inference that all the
essential ingredients, meant for the commission of offence, for which the
appellant was convicted, had been proved. In view of above, the learned
counsel for the appellant has contended that the case against the appellant
was not proved by the prosecution, but erroneously the learned trial Court
returned the finding of conviction.
9. However, during the course of arguments, the learned counsel
for the appellant has contended that in the instant appeal, the appellant is not
inclined to challenge the finding of conviction recorded by the learned trial
Court. The learned counsel for the appellant has categorically contended that
at this stage, by virtue of present appeal, the appellant is challenging the order
on the point of quantum of sentence only.
10. It has been further contended by learned counsel for the
appellant that the incident had taken place way back in the year 2001.
According to learned counsel for the appellant, the appellant is facing the
agony of litigation for the last more than 25 years and has, in fact, already
suffered more punishment than he deserved. According to learned counsel for
the appellant, before or after the offence, related to present case, the appellant
has not been prosecuted for any other offence.
11. In addition to above, the learned counsel for the appellant and
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CRA-S-1036-SB-2005 5
has also argued that the quantity of contraband recovered in this case was
within the ambit of ‘non-commercial quantity’ and that in the present case,
the appellant ‘Shiv Kumar’ has already undergone imprisonment for a period
of one year, nine months and three days. According to learned counsel for the
appellant, in view of above-discussed factors, and the fact that minimum
sentence has not been prescribed for the offence, for which the appellant has
been convicted, the sentence already undergone by the appellant may be
treated to be sufficient.
12. Per contra , the learned counsel for the respondent/State has
argued that the appellant was found guilty for the commission of offence
punishable under Section 20 of NDPS Act. According to learned counsel for
the respondent/State, the sentence awarded to the appellant, i.e. imprisonment
for a period of ten years, is already on lower side, and that the appellant is not
entitled to a sentence, awarded to him. As per learned counsel for the
respondent/State, the instant appeal has no merits and deserves dismissal.
13. The record has been perused carefully.
14. Although it is categorical stand of the appellant that he is not
challenging the judgment of conviction, passed by the learned trial Court, yet,
with a purpose to evaluate evidence, the record has been perused carefully. A
perusal of trial Court record shows that the evidence adduced by the
prosecution was thoroughly consistent, and good enough to bring home guilt
of the appellant, for which he was charge-sheeted. Thus, it is hereby held that
there is no scope for interference or indulgence in the findings recorded by
the learned trial Court, with regard to conviction of appellant, for the offence
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CRA-S-1036-SB-2005 6
under Section 20 of NDPS Act. Accordingly, the abovementioned finding is
hereby affirmed and qua the judgment of conviction instant appeal is hereby
dismissed.
15. In the present case, a very interesting question has cropped up. It
is as to whether the quantity of contraband recovered from the possession of
appellant was commercial quantity or non-commercial quantity. As per case,
set-out by the prosecution, 1 kg charas was recovered from the possession of
appellant. The abovesaid quantity was exactly equal to the quantity,
prescribed for commercial quantity of charas. As per notification, issued by
the Central Government, under NDPS Act, the quantity mentioned against
commercial quantity of charas is 1 kg.
16. However, Section 2(viia) of NDPS Act prescribes the definition
of ‘commercial quantity’, and reads as under:-
‘commercial quantity, in relation to narcotic drugs and
psychotropic substances, means any quantity greater than the
quantity specified by the Central Government by notification in
the Official Gazette.”
In view of abovementioned definition of ‘commercial quantity’,
read with the contents of notification, issued by the Central Government
under NDPS Act, it is hereby observed that the quantity of contraband
recovered from the possession of appellant did not come within the ambit of
commercial quantity.
17. As far as the order on quantum of sentence is concerned, in view
of the fact that the appellant ‘Shiv Kumar’ has already undergone
imprisonment for a period of one year, nine months and three days, against
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CRA-S-1036-SB-2005 7
the awarded sentence of ten years, it is hereby held that the appellant is
entitled to a lenient view.
18. In the light of above observations, if factual matrix of the present
case is analyzed, it transpires that following are the points which are required
to be taken into consideration: -
(a) that the quantity of contraband recovered in this case was
non-commercial quantity, for which minimum sentence has
not been prescribed;
(b) that the incident in question had taken place about 25 years
ago;
(c) that the appellant is facing the agony of protracted trial for
the last more than 25 years;
(d) that against the awarded sentence of ten years, the appellant
‘Shiv Kumar’ has already undergone imprisonment for a
period of one year, nine months and three days;
(e) that it was the first offence committed by the appellant;
(f) that in the last more than 25 years, the appellant has not been
prosecuted for any offence; and
(g) that now the age of the appellant ‘Shiv Kumar’ is more than
49-year-old.
19. In view of abovementioned observations, the sentence awarded
to the appellant is hereby held to be harsh and, as a consequence thereof, it is
hereby observed that with regard to quantum of sentence, there is need for
interference and indulgence in the impugned order, i.e. the order on the point
of quantum of sentence, by exercising the appellate jurisdiction vested in this
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CRA-S-1036-SB-2005 8
Court. Thus, in my opinion, by exercising the abovementioned jurisdiction,
the sentence awarded to the appellant needs to be rationalized and reduced.
20. As a cumulative effect of abovementioned observations, it is
hereby held that in the present case, the appellant is entitled to a lenient view,
and that the sentence already undergone in the present case, is adequate to
meet the ends of justice.
21. As a sequel to the aforesaid discussions, the present appeal is
hereby partly allowed . The judgment of conviction is upheld; but order on the
point of quantum of sentence is modified, and the sentence awarded to the
appellant is reduced to the period already undergone by him.
22. Pending miscellaneous application(s), if any, stand(s) disposed
of, accordingly.
(SURYA PARTAP SINGH)
JUDGE
04.11.2026
vipin
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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