Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S).1218 OF 2022
(Arising out of SLP(Criminal) No(s). 4935 of 2022)
BUDHIYARIN BAI ….APPELLANT(S)
VERSUS
STATE OF CHATTISGARH ….RESPONDENT(S)
J U D G M E N T
Rastogi, J.
1. Leave granted.
2. The instant appeal is directed against the judgment and order
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dated 26 February, 2018 upholding conviction of the appellant for
the offence under Section 20(b)(ii)(C) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter being referred to as
the “NDPS Act”) and sentenced to 15 years’ rigorous imprisonment
Signature Not Verified
Digitally signed by
Rajni Mukhi
Date: 2022.08.10
17:37:55 IST
Reason:
and a fine of Rs.One Lakh, in default to pay fine, a sentence of
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rigorous imprisonment for a period of 3 years to be undergone
separately.
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3. The notice was issued by this Court by an Order dated 13
May, 2022 limited to the quantum of sentence.
4. The facts of the case relevant for the purpose are that the
appellant is a poor illiterate lady and a senior citizen at the time of
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the alleged incident, i.e., 15 January, 2011, who, along with her
two children, Pila Ram and Rajkumar alias Raju was charged under
Section 20(b)(ii)(C) of the NDPS Act for having joint possession of
the commercial quantity of illegal ‘Ganja’(Cannabis) of 05 quintal
and 21.5 kilogram, which was, as alleged, in their joint knowledge.
Other coaccused Rajendra Tiwari and Idris Khan were charged
under Section 27A of the NDPS Act that they delivered the illegal
cannabis in the house which was in possession of accused
appellant at Village Chikhali, Police Station Dondi and thereby
facilitated trafficking of cannabis carried out by appellant and her
two children(coaccused Pila Ram and Rajkumar alias Raju).
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5. The case of the prosecution in brief is that on 15 January
2011, the then stationincharge of Police Station Dondi, PW7
Vinay Singh Baghel, on being informed via telephone by stationin
charge Rajhara about accused appellant of Village Chikhali keeping
‘ganja’(Cannabis) in her house for selling; gave this information to
C.S.P. Rajhara through telephone and prepared a written report in
this regard and sent it via Constable No. 1480. Thereafter, PW7
Vinay Singh Baghel along with his beat staff, reached Village
Chikhali for action and summoned witnesses Komal Singh and
Chandrika Bai. Informing accused appellant about the information
and after giving notice and consent for search proceedings,
prepared the consent Panchnama. StationinCharge Vinay Singh
Bhaghel prepared his search Panchnama by allowing the accused
appellant to search him, police staff and witnesses first.
6. Thereafter, upon conducting lawful search of the house of the
accused appellant in front of the witnesses, ‘ganja’(cannabis) was
found in twenty twine sacks, search and seizure of Panchnama of
which was prepared. After physical verification of scales from
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weigher Devlal Sinha, and upon weighing the recovered ganja, total
weight of ganja packed in 20(twenty) sacks was found to be 05
quintals, 21.5 kilogram. From each of the said sacks, two samples
of 5050 gms. each were taken and the original ganja was labelled
‘A’ to ‘T’ and sample packets as “A1’, ‘A2’ till ‘T1’, ‘T2’. After the
ganja(cannabis) and sample packets were sealed and seized, the
appellant was given a notice under Section 91 CrPC. She failed to
produce any document in relation to being in possession of said
cannabis. Accused appellant on being questioned stated to be
carrying on the trade of cannabis together with her two sons, Pila
Ram and Raj Kumar alias Raju as well as with Rajendra Tiwari and
Idris Khan.
7. The FIR came to be registered and after completion of
investigation, chargesheet under Sections 20(b) and 27A of the
NDPS Act and Section 299 IPC was filed implicating 5 accused
persons including the present appellant.
8. The trial Court framed the charge under Section 20(b)(ii)(C) of
the NDPS Act against the present appellant and two other persons,
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namely, Pila Ram and Raj Kumar alias Raju and two other persons,
namely, Rajendra Tiwari and Idris Khan were charged for the
offence punishable under Section 27A of the NDPS Act.
9. So as to hold the accused persons guilty, the prosecution
examined 09 witnesses in all and statements of accused persons
were recorded under Section 313 CrPC in which they denied the
circumstances appearing against them in the prosecution case,
pleaded innocence and false implication.
10. The trial Court, after hearing the learned counsel for the
parties, held the appellant guilty for the offence under Section 20(b)
(ii)(C) of the NDPS Act and acquitted other four persons of all the
charges and while the matter being heard for sentence, it was
pointed out that the appellant is an old illiterate lady from the rural
background, having no previous criminal history but the learned
trial Judge, has not examined in totality, as what could be
appropriate punishment to her and sentenced the appellant for 15
years’ rigorous imprisonment and a fine of Rs. 1 lakh, in case of
failure to pay amount of fine, a sentence of rigorous imprisonment
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for a period of three years to be undergone separately under the
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judgment and order dated 8 November 2012.
11. The order of acquittal against the four coaccused persons was
never a matter of challenge at the instance of the prosecution. The
poor illiterate lady preferred an appeal before the High Court
against the impugned judgment but the High Court, examining the
conviction on merits, took note of the bare facts regarding the
compliance of Sections 42, 50 and 55 of the NDPS Act made and
since the psychotropic substance was recovered from the residence
of the appellant, considered it to be the basis for upholding
conviction and sentence of the appellant under the impugned
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judgment dated 26 February 2018.
12. Neither the trial Court nor the High Court has considered that
the lady was illiterate and a senior citizen, was indeed residing but
completely unknown to law, with two grown up children, with no
previous background of being involved in any kind of criminal cases
at any point of time in her life time. The case of the prosecution
was that on being received a telephone call, PW07 Vinay Singh
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Baghel along with his beat staff reached Village Chikhali and
accused appellant, who was residing there, was served a notice and
other accused persons were not found at the time of search, the
present appellant was taken into custody and against the two co
accused persons against whom there was an allegation that they
were involved in the illegal trade and who supplied this
psychotropic substance to the appellant, both were charged for
offence under Section 27A of NDPS Act.
13. All the other four coaccused persons were acquitted by the
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learned trial court under judgment dated 8 November 2012 and
held the accused appellant guilty of the offence as she was in
possession of the house from where the psychotropic substance was
recovered and appeal preferred at her instance came to be
dismissed.
14. We are not dilating upon the procedure that was followed in
the instant case but after all the five accused persons faced trial,
unfortunately the appellant alone was held guilty, and the trial
Judge, without examining in totality of the matter and the other
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salient facts into consideration, sentenced her to 15 years’ rigorous
imprisonment and a fine of Rs. 1 lakh, in case of default, further
imprisonment for a period of 3 years.
15. We have heard learned counsel for the appellant and also the
learned counsel for the State who has tried to persuade this Court
that looking into the nature of offence which has been committed by
the appellant, there should be no leniency in such matters,
particularly, when the offence has been proved against her beyond
doubt and conviction is upheld by the High Court under Section
20(b)(ii)(C) of the NDPS Act.
16. It may be noticed that the minimum sentence prescribed
under the NDPS Act for such offence under Section 20(b)(ii)(C) is 10
years which may extend to 20 years with a fine of Rs. 1 lakh which
may extend to Rs. 2 lakhs. While imposing higher than the
minimum punishment, such of the factors which are to be taken
into consideration have been provided under Section 32B of the
NDPS Act but after we have gone through the record with the
assistance of the counsel for the parties, we are of the view that the
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learned trial Judge as well as the High Court have not taken into
consideration the factors to be kept in mind for imposing higher
than the minimum sentence provided under Section 32B of the
NDPS Act.
17. We are of the considered view that the offences under the
NDPS Act are very serious in nature and against the society at large
and no discretion is to be exercised in favour of such accused who
are indulged in such offences under the Act. It is a menace to the
society, no leniency should be shown to the accused persons who
are found guilty under the NDPS Act. But while upholding the
same, this Court cannot be oblivious of the other facts and
circumstances as projected in the present case that the old illiterate
lady from rural background, who was senior citizen at the time of
alleged incident, was residing in that house along with her husband
and two grown up children who may be into illegal trade but that
the prosecution failed to examine and taking note of the procedural
compliance as contemplated under Sections 42, 50 and 55 of the
NDPS Act, held the appellant guilty for the reason that she was
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residing in that house but at the same time, this fact was
completely ignored that the other coaccused were also residing in
the same house and what was their trade, and who were those
persons who were involved into the illegal trade providing supplies
of psychotropic substances, prosecution has never cared to
examine.
18. We are not going to examine the question any further but
taking in totality of the matter and the background facts which
have come on record that she was an illiterate senior citizen on the
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date of the incident, i.e., 15 January 2011, having no criminal
record, and was from the rural background, completely unknown to
the law and unaware of what was happening surrounding her, all
these incidental facts have not been considered by the learned trial
Court while awarding sentence to the appellant.
19. In the given facts and circumstances, while upholding
conviction of the appellant, and considering the old age of the
accused appellant, who is a poor illiterate lady completely unaware
of the consequences, we consider it appropriate that the sentence of
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the accused appellant be reduced to 12 years’ rigorous
imprisonment and a fine of Rs. 1 lakh and in default, to further
undergo rigorous imprisonment of six months which shall meet the
ends of justice. Ordered accordingly.
20. Consequently, the appeal with the aforesaid modifications
stands disposed of.
21. Pending application(s), if any, shall stand disposed of.
……………………..J.
(AJAY RASTOGI)
………………………J.
(C.T. RAVIKUMAR)
NEW DELHI
AUGUST 10, 2022.
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