Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1661 OF 2010
| Sk. Sakkar @ Mannan | .....APPELLANT |
|---|---|
| VERSUS | |
| State of West Bengal | .....RESPONDENT |
JUDGEMENT
Surya Kant, J:
The appellant Sk. Sakkar @ Mannan assails the judgement dated
09.12.2009 passed by the High Court at Calcutta whereby his appeal
against the judgement and order dated 26.05.2004 and 27.05.2004
passed by Special Judge, Birbhum convicting him for offences under
Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(“NDPS Act”) and imposing a sentence of five years rigorous
imprisonment (RI) and a fine of Rs. 20,000/ (in default, whereof to
further undergo RI for one additional year), has been dismissed.
2. The prosecution case in brief is that upon receiving secret
Signature Not Verified
information, D.S.P. Headquarter, Birbhum conducted a raid on
Digitally signed by
SATISH KUMAR YADAV
Date: 2021.02.08
16:02:31 IST
Reason:
16.11.1997 and intercepted an Ambassador car bearing no. BRW 312.
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Since the car was detained inside a forest area, 3/4 occupants of the car
managed to flee, while only 2 of the occupants, including the appellant,
were caught and arrested. 11kgs of ganja was seized following the
statutory procedure. The suspects were thereafter interrogated, and a
formal FIR was registered at Police Station Sadaipur. Charge sheet was
submitted against five persons including the appellant.
3. The appellant and his coaccused, except one Kalachand Saha,
were charged under Section 20 of the NDPS Act. Since they pleaded not
guilty, trial was conducted, and the charges against them were proved.
The Special Judge, Birbhum convicted and sentenced the appellant as
noted in paragraph 1 of this order.
4. The appellant assailed his conviction before the High Court,
contending, inter alia, that the prosecution case was suffering from
inherent weakness, and that the testimonies of the witnesses were not
credible. The plea of absence of independent witnesses, more so when
PW2, PW3 and PW8 were declared hostile, was also pressed into
service. It was also highlighted that although Kalachand Saha was
claimed to have been arrested along with the appellant, he was not even
chargesheeted.
5. The High Court minutely scrutinized the entire evidence and has
extensively discussed the depositions made by PW1, PW6, PW7 and
PW9. It then firmly held that about 11 kgs of ganja was recovered from
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the appellant and Kalachand Saha. As regard to other three coaccused,
the High Court opined that since they were not arrested at the spot and
were roped in only with the aid of confessional statement of the arrested
person(s), the case against them was not proved beyond reasonable
doubt. The High Court thus acquitted the appellant’s coaccused, but
dismissed his appeal upholding the conviction and sentence awarded by
the Special Judge.
6. The still aggrieved appellant approached this Court through Special
Leave to Appeal, in which leave was granted on 27.08.2010. Thereafter,
having regards to the fact that the appellant had already undergone
actual sentence for a period of 2 years 4 months and 16 days, out of the
total sentence of RI for five years, this Court vide order dated 02.11.2012
suspended the sentence and released the appellant on bail.
7. We have heard learned counsel for the parties at considerable
length and perused the record. In sum and substance, it is urged on
behalf of the appellant that the courts below have not correctly
appreciated the statements of the witnesses or the evidence comprising
seizure memo etc. It is also argued that PW2, PW3 and PW8 having
been declared hostile, the remaining ocular evidence falls short of
proving the appellant’s guilt beyond reasonable doubt.
8. We are, however, not impressed by these contentions. What has
been sought to be argued is essentially either a question of fact or an
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abortive attempt for reappreciation of evidence on record. Such
discourse ordinarily does not fall within the scope and ambit of powers
1
vested in this Court under Article 136 of the Constitution . The
appellant’s claim for parity with his acquitted coaccused is also
misconceived, for unlike the appellant, none of them were apprehended
at the spot; and as found by the High Court, no evidence was produced
to connect them with the alleged offence. Contrarily, not only was the
appellant apprehended at the spot of the incident but also was found in
conscious possession of the ganja. As regard to his coaccused
Kalachand Saha, there is unfortunately no material on record to shed
light on the circumstances in which charge sheet was not filed against
him. The appellant, however, did not rely upon this fact either in his
defense statement under Section 313, CrPC or otherwise. The
aforementioned supplication therefore cannot be entertained at this
belated stage. There is no other substantial question of law raised on
behalf of the appellant. We are, thus, not inclined to interfere with the
concurrent finding of fact returned by the courts below.
9. Faced with this, learned Senior Counsel for the appellant relies
upon several mitigating circumstances to persuade us to reduce the
sentence period. He passionately urges that: (i) the appellant has
1
(i) Surendra Puri v. State of Uttarakhand, (2016) 13 SCC 274; (ii) Mangu Khan
and Others v. State of Rajasthan (2005) 10 SCC 374; (iii) Pritam Singh v. State, AIR
1950 SC 169.
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suffered protracted trial for more than 23 years; (ii) he alone has been
convicted while his coaccused are acquitted; (iii) the appellant was not
involved in any other case under the NDPS Act or other Penal Laws; (iv)
the appellant has already undergone actual sentence of 2 years 4
months and 16 days out of the total sentence of five years; (v) and that
the appellant has not misused the concession of bail granted by this
Court on 02.11.2012.
10. We find some merit in the submission noticed above. It may be
noted that the appellant committed the crime in the year 1997, i.e.,
much before the Narcotic Drugs and Psychotropic Substances
(Amendment) Act, 2001 came into force. The punishment for
contravention in relation to cannabis plant or any other provision of the
NDPS Act, in his case, would thus be regulated by the unamended
Section 20 of the NDPS Act, as it stood before the amendment of 2001
and which reads as follows:
“20. Punishment for contravention in relation to cannabis plant
and cannabis. Whoever, in contravention of any provision of this
Act or any rule or order made or condition of license granted
thereunder
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells, purchases,
transports, imports interState, exports interState or uses
cannabis, shall be punishable,
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(i) where such contravention relates to ganja or the
cultivation of cannabis plant, with rigorous imprisonment
for a term which may extend to five years and shall also
be liable to fine which may extend to fifty thousand
rupees;
(ii) where such contravention relates to cannabis other than
ganja, 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 and which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the
judgment, impose a fine exceeding two lakh rupees.”
(emphasis supplied)
11. It is manifest from Section 20(i) of NDPS Act (as it stood in 1997),
that even though a maximum sentence of five years RI and a fine of upto
Rs. 50,000/ was prescribed but there was no minimum mandatory
sentence. The Legislature had in its wisdom left it to the judicious
discretion of a court to award the minimum sentence albeit guided by
the well known principles on the proportionality of sentence. Taking into
consideration the peculiar facts and circumstances of this case, it
appears to us that the ends of justice would be adequately met if the
appellant’s sentence is reduced to the extent of the period he has already
undergone. We order accordingly.
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12. For the reasons(s) stated above, the appeal is allowed in part; the
impugned judgments of the Special Judge and the High Court are
modified and the sentence of five years RI awarded to the appellant is
reduced to the period of sentence already undergone. The bail bond of
the appellant is discharged. However, the appellant shall be liable to pay
fine of Rs. 20,000/ within two months, if already not deposited and in
default thereof he will be liable to undergo RI for six months.
…………………………….. J.
(N.V. RAMANA)
……………………………… J.
(SURYA KANT)
……..………………………. J.
(ANIRUDDHA BOSE)
NEW DELHI
DATED : 03.02.2021
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