Narsi Ram v. State Of Haryana

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH Decided on : 04.05.2023 Narsi Ram . . . Appellant(s)

Versus

State of Haryana . . . Respondent(s) CORAM: HON'BLE MR. JUSTICE SANJAY VASHISTH

Present:

Mr. Sanjiv Sheoran, Advocate for the appellant(s).

Mr. Pawan Kumar Jhanda, DAG, Haryana.

**** SANJAY VASHISTH, J. (Oral):

1.

Appellant - Narsi Ram, aged about 40 years (at the time of conviction), has filed the present appeal challenging judgment of conviction dated 24.11.2004 and order of sentence dated 26.11.2004, passed by learned Additional Sessions Judge, Fatehabad, in Sessions Case No.54 of 2001, arising from FIR No. 455, dated 03.10.2000, under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act'), registered at Police Station Sadar, Fatehabad. 2.

Few facts necessary for adjudication of the case, may be noticed. On 03.10.2000, ASI Madan Lal, along with other police officials was present near Power House situated on Radopal-Dharnia road, in connection with patrolling and crime checking. During that time, a scooter bearing registration No. HR-24-1033 came from the side of village Dharnia, which was being driven by accused Krishan (who being juvenile, was facing trial before Chief Judicial Magistrate, Hisar), and accused Narsi Ram, was pillion rider of that scooter, holding a gunny bag. On seeing the police party,

- 2 - accused Krishan tried to turn back his scooter. On this, both the accused along with the scooter were apprehended. Being suspecting of having some narcotic substance in the bag, the Investigating Officer, gave notice Ex.PE, to both the accused to the effect, if they so desired to get their search conducted in presence of some Gazatted Officer, or a Magistrate. Both the accused vide their joint reply Ex.PE/1 desired to get the search conducted in the presence of a Gazzeted Officer.

Accordingly, ASI Madan Lal, called Sh. Ashok Kumar, DSP Headquarters, Fatehabad, who accordingly, reached the spot. After apprising him about the facts of the case, and as per the directions of the DSP, search of the bag was conducted, which resulted into recovery of poppy husk. After preparing a separate sample of 200 grams of poppy husk, remaining was found to be 39.800 kilograms. Thereafter, sample as well as the remainder were converted into sealed parcels and sealed with the seal of AK, and taken into possession vide separate recovery memo. The seal after use was handed over to DSP. A ruqa was sent to the police station, on the basis of which, a formal FIR was registered. The Investigating Officer also recorded statements of the witnesses and prepared the rough site plan of the place of occurrence.

The sample was sent to the office of the Chemical Examiner for analysis. Accordingly, after completing the investigation, the final report under Section 173 Cr.P.C. was filed against the accused, and was submitted in the Court of Illaqa Magistrate, which was further committed to the Court of Sessions by learned SDJM, Fatehabad on 08.01.20201. 3.

Accused-appellant - Narsi Ram, was put to trial. He was charged for the offence punishable under Section 15 of the NDPS Act, vide order dated 12.02.2001. Eventually, learned Trial Court held the appellant guilty of the offence, vide judgment of conviction dated 24.11.2004 and vide

- 3 - order of sentence dated 26.11.2004, he was sentenced as under:- Under Section Sentence Fine In Default 15 of the NDPS Act 3 years RI Rs.10,000/- 9 months RI 4.

Appeal was admitted on 03.12.2004, and on the same date, after noticing the factum of total undergone period inside jail, remaining sentence of the appellant was suspended by this Court, during the pendency of this appeal.

5.

At the time of final hearing of the appeal today, learned counsel for the appellant submits that appellant has reformed himself by rehabilitating in the society, as he never got involved in any other case of similar nature despite being on bail since the time of conviction by learned trial Court. Thus, he does not wish to challenge the judgment of conviction dated 24.11.2004, passed by learned Additional Sessions Judge, Fatehabad. However, on the question of quantum of sentence, learned counsel for the appellant submits that appellant being first offender & sole bread earner for his family; being aged about 59 years at present; there being no other case ever registered against him, except the present one; already 06 months and 15 days of actual sentence period has been undergone by the appellant in jail; and that appellant is facing agony of criminal prosecution for the last about 23 years, by taking a lenient view, remaining substantive sentence of imprisonment of the appellant may be reduced to the period already undergone by him in jail.

6.

On the other hand, Mr. Pawan Kumar Jhanda, learned Deputy Advocate General, Haryana, while opposing the submissions addressed by learned counsel for the appellant, submits that prayer of the appellant should not be accepted because he was involved in a serious case, offence of which

- 4 - is a crime against society. Learned State counsel also furnished custody certificate dated 01.05.2023, today in the Court, which is taken on record. As per said custody certificate, appellant has undergone actual period of imprisonment of 06 months and 15 days, out of total substantive sentence of 3 years, which was ordered by learned Trial Court. 7.

I have heard learned counsel for the parties and with their able assistance gone through the record.

8.

This Court has examined the submissions addressed by learned counsel from both the sides and also perused the custody certificate dated 01.05.2023, and has noticed that except the present case, appellant is not involved in any other criminal case.

9.

Another noticeable aspect is that after release of the appellant on bail, vide order dated 03.12.2004, by this Court, he was never found indulged in any other similar activity, which shows that with the passage of time, appellant has adopted the principles of reformatory theory, which otherwise also sends a direct message to reform oneself despite facing conviction in a criminal case.

10.

On the issue of reformatory theory in context to any wrong doer, His Lordship V.R. Krishna Iyer, J., of Hon'ble Apex Court, in case titled as Mohammad Giasuddin v. State of Andhra Pradesh, (1977) 3 SCC 287, has observed as under:- "5.

If every saint has a past, every sinner has a future, and it is the role of law to remind both of this. The Indian legal genius of old has made a healthy contribution to the word treasury of criminology. The drawback of our criminal process is that often they are built on the bricks of impressionist opinions and dated values. Ignoring empirical studies and deeper researches." (emphasis added) 11.

In case titled as Satish @ Sabbe v. Stateof Uttar Pradesh (Special Leave Petition (Crl.) No. 7369 of 2019, decided on 30.09.2020 :

- 5 - Law Finder Doc ID # 1746022), His Lordship Surya Kant, J., says as: "Whilst it is undoubtedly true that society has a right to lead a peaceful and fearless life, without free-roaming criminals creating havoc in the lives of ordinary peace-loving citizens. But equally strong is the foundation of reformative theory which propounds that a civilised society cannot be achieved only through punitive attitudes and vindictiveness; and that instead public harmony, brotherhood and mutual acceptability ought to be fostered. Thus, first-time offenders ought to be liberally accorded a chance to repent their past and look-forward to a bright future." (emphasis added) 12.

This Court also can not ignore the observation made by their Lordships' of Hon'ble Apex Court in the case of Commissioner of Police and others v. Sandeep Kumar, (2011) 4 SCC 644:- "9. ...... The modern approach should be to reform a person instead of branding him as a criminal all his life". 13.

In the case of Haribhau v. State of Maharashtra, (2018) 18 SCC 43, Hon'ble Apex Court made observation in the case of an appeal which was preferred against an order of reduction of sentence 'as already undergone'. Para 13 of the said judgment says as under:- "13.

In our considered opinion, firstly, taking into account CRA-S1962-SB-2004 5 that the appellant has already undergone one month's jail sentence out of three months awarded to him, secondly, the fact that the incident in question is quite old and seems to have occurred at the spur of the moment, thirdly, the appellant has no criminal antecedent in his past life and lastly, he is not required in any other criminal case except the one in question which the appellant fairly did not deny having committed and rightly did not challenge his conviction, it is considered to be just and proper to alter the jail sentence awarded to the appellant from three months to the extent of period of one month which was already undergone by him and instead enhance the total fine amount awarded under different sections from Rs. 800 to Rs. 15,000/-" 14.

Now applying the principles noticed at different stages by the Courts', I find that recovery of 40.000 Kgs. of poppy husk in present case, was effected on 3.10.2000, i.e. more than 23 years back; at the time of recovery, appellant was of the age of about 36 years; prior to that he was never found involved in any other case, especially of similar nature; even after involvement of appellant in the present case, there is no other case

- 6 - registered against him; had he been addicted himself or in the business of narcotic drugs, chances of his involvement after registration of the case in hand could be on higher side; non-involvement in any other case is enough to assess that appellant has reformed himself and rehabilitated in the society; and that not sending the appellant again behind the bars, because of not repeating such offence again, may set an example for others also to get inspired of not involving themselves again in the field of narcotic drugs. Therefore, taking into consideration totality of circumstances, this Court is of the view that ends of justice would be best met, if the substantive sentence of imprisonment of the appellant is reduced to the period already undergone by him.

15.

Resultantly, conviction of the appellant under Section 15 of the NDPS Act is maintained and his substantive sentence of imprisonment is reduced to that already undergone by him. However, as far as, remaining part of sentence, i.e. payment of fine of Rs. 10,000/- is concerned, same is enhanced from Rs.10,000/- to Rs.20,000/-.

16.

With the above modification(s) in the order of sentence dated 26.11.2004, passed by learned Additional Sessions Judge, Fatehabad, present appeal stands disposed of.

17.

Registry is directed to send back original lower court record alongwith a copy of this judgment to learned Trial Court, for taking further steps with regard to the recovery of fine, in accordance with law. (SANJAY VASHISTH) JUDGE May 04, 2023 J.Ram Whether speaking/reasoned:

Yes/No Whether Reportable:

Yes/No