Partly allowed

Vikky v. State of U.P.

Allahabad HC28 Aug 2018JAPL/370/2018

Case brief

AI extract

What is this about?

This appeal challenged the ten-year sentence for possession of 120 grams of Charas. The court held the sentence disproportionate given the confession and low quantity, remitting it to two years while maintaining the conviction.

What did the court decide?

Conviction maintained; sentence reduced from ten years to two years rigorous imprisonment, and fine reduced to Rs. 10,000/-; appellant acquitted forthwith as sentence period lapsed.

What the court decided

AI extract

AFR

Court No. - 42

Case :- JAIL APPEAL No. - 370 of 2018
Appellant :- Vikky
Respondent :- State Of U.P.
Counsel for Appellant :- From Jail,Seema Pandey
Counsel for Respondent :- A.G.A.

¶5

Hon'ble Arvind Kumar Mishra-I,J.

¶6

This appeal challenges the judgment and order
of conviction dated 25.11.2016 passed by the
Additional Sessions Judge, Court No.18, Agra, in
Session Trial No.16 of 2016 State Vs. Vikky son of
late Kishan Lal, under Section 8/20 of N.D.P.S.
Act, Police Station Shahganj, District Agra,
whereby the appellant was sentenced to ten years
rigorous imprisonment with fine Rs.50,000/-, in
case of default in payment of fine, he would be
required to suffer additional six months
imprisonment.

¶7

Heard Ms. Seema Pandey, learned amicus curiae
for the appellant, Sri Om Narain Tripathi, learned
A.G.A. for the State and perused the record.

¶8

Facts relevant for adjudication of this appeal
appear to be that on 22.12.2015, S.I. Mahesh
Singh, Incharge Police Outpost Sarai Khwaja,
Police Station Shahganj, District Agra in company
with other police personnel was busy in
maintaining law and order and had left the Police
Station vide Rapat No.2, Time 00:10 hours. As soon
as the police party led by the aforesaid Sub-
Inspector reached near Arjun tri-crossing at
Railway double Fatak, while proceeding towards

Vikky Vs State of U.P. — Narcotics (NDPS) | Allahabad HC (2018)

¶10

Nagala Chhaua, the police party sighted one man
under railway bridge. No sooner did he see the
police personnel than he suddenly turned back and
began to scampering away from the scene which
created suspicion in the mind of the police party
and they apprehended the accused-appellant around
4:30 a.m. on 22.12.2015 on the road leading to
Nagala Chhaua ahead of the railway bridge. When he
was enquired, he explained his name Vikky son of
Kishan Lal.

¶11

On being asked as to why he was scampering
from the scene, he told that he was possessing
Charas, therefore, he got perplexed on seeing the
police and started running away from the scene. He
was told by the police party that he has option to
be searched before a gazetted officer or a
Magistrate whereupon he reposed trust in the
police party for being searched, therefore,
consenting letter was prepared and search was
carried out by the police party then one packet
was recovered from the right pocket of his
trouser. The balancing equipment was arranged by
Constable Jahid Khan. The packet weighed 120 gram.
Apart from that, Rs.20/- was also recovered from
his pocket and after ensuring compliance of the
guidelines of the Human Rights Commission and
Hon'ble Apex Court, the accused-appellant was
taken into custody for committing offence under
Section 8/20 of N.D.P.S. Act.

¶14

prepared by S.I. Mahesh Singh on the spot and it
was read over and explained to the accused-
appellant. The police party and the accused-
appellant made their endorsement on it and a copy
whereof was given to the accused-appellant. This
memo is Ext. Ka-2.

¶15

Pursuant thereto, the case was lodged at
Police Station Shahganj on 22.12.2015 at 6:30 p.m.
at Case Crime No.0991 of 2015 under Sections 8/20
of N.D.P.S. Act and relevant entries were made in
the concerned general diary of the same day i.e.
22.12.2015 and the case was registered against the
accused-appellant. Check FIR is Ext. Ka-3.

¶19

In turn, the prosecution was required to
adduce its testimony whereupon the prosecution
produced Mahesh Singh PW-1 before the trial court
who in his testimony has proved the fact of
apprehension, search and seizure of Charas from
the possession of the accused-appellant and has
proved Ext. Ka-1, Ext. Ka-2, Ext. Ka-3, Ext. Ka-4,
Ext. Ka-5, Ext. Ka-6 and Ext. Ka-7 in his

¶21

examination in chief. While his cross examination
was to be done by the accused/defence, the
accused-appellant moved an application before the
trial court whereby he confessed commission of the
crime by himself thus did not cross examine the
prosecution witness (PW-1).

¶22

Thereafter, evidence for the prosecution was
closed and statement of the accused-appellant was
noted under Section 313 Cr.P.C. wherein he
confessed the guilt and submitted that the
contraband Charas weighing 120 gram was recovered
from his possession.

¶23

The trial court after considering the merit of
the case returned the aforesaid finding of
conviction and sentenced the accused to ten years
rigorousimprisonmentcoupledwithfine
Rs.50,000/-, in case of default in payment of
fine, he would be required to suffer additional
six months imprisonment.

¶25

Ms. Seema Pandey, the learned amicus curiae
for the appellant has contended that in this case,
insofar as the point of conviction recorded by the
trial court vide impugned judgment dated
25.11.2016 is concerned, she has nothing to submit
on merit in view of the confession made by the
accused before the trial court but she would like
to submit on the point of quantum of sentence
imposed by the trial court on the ground that the
sentence imposed is disproportionate to the
offence proved.

¶27

Learned amicus curiae for the appellant has
succinctly submitted that in this case, the
recovered quantity of Charas was admittedly 120
grams, which quantity is lesser than the
commercial quantity, then proportionate sentence
ought to have been imposed upon the accused-
appellant considering the fact that accused-
appellant had confessed the guilt and had prayed
for leniency on the point of sentencing before the
trial court. The sentence imposed should be
proportionate to the crime committed by the
accused-appellant and the basis of sentencing is
the actual contraband recovered from the
possession of the accused-appellant which is 120
grams of Charas.

¶28

Learned amicus curiae for the appellant has
submitted next that looking to the aforesaid
aspect of the case, it would be in the fitness of
things that sentence of two years imprisonment
would serve the interest of justice. The accused-
appellant is a poor man, therefore, the amount of
fine may be reduced to less amount.

¶29

Learned A.G.A. for the State has opposed the
prayer for imposition of lesser sentence than the
one imposed by the trial court on the ground that
the accused-appellant has himself admitted to have
committed the offence and the quantity of the
contraband 120 grams of Charas was recovered from
his possession. No doubt, the quantity of the
recovered contraband is lesser than the commercial
quantity but that would not justify lesser
sentence than the one awarded by the trial court.

¶32

Considering the facts and circumstances of the
case and scrutinizing the entire testimony,
particularly the fact that the accused-appellant
has admitted to have committed the crime and no
doubt, it is undisputed that the quantity of
contraband recovered from possession of the
accused-appellant is 120 grams of Charas, the
sentence awarded by the trial court is on the face
disproportionate to the crime committed in this
case. Sentencing part of the judgment has nothing
to do with the merit of the case but a balance of
aggravating and mitigating circumstances is to be
evaluated in order to impose just sentence.

¶33

Here if the quantity of contraband recovered
would have been commercial quantity over 1000
grams of Charas then imprisonment for not less
than 10 years would have been justified. But this
is not the case in hand and the accused is not a
previous convict. Therefore, in such cases
normally sentencing should be commensurate with
the quantity of the contraband recovered. It
appears that the accused has made remorseful
confession. Here aggravating circumstance is
recovery of 120 grams of Charas, whereas,
confession made without contesting the case is the
mitigating circumstance standing in favour of the
accused.

¶36

stage, hence, the sentence of 10 years rigorous
imprisonment with fine Rs.50,000/- imposed by the
trial court is palliated to two years rigorous
imprisonment coupled with fine Rs.10,000/-, in
case of default he would have to suffer additional
two months imprisonment.

¶37

Accordingly, the sentencing part of the
impugned judgment and order of conviction dated
25.11.2016 passed by the Additional Sessions
Judge, Court No.18, Agra, in Session Trial No.16
of 2016 State Vs. Vikky son of late Kishan Lal,
under Section 8/20 of N.D.P.S. Act, Police Station
Shahganj, District Agra is hereby modified to the
aforesaid extent and the conviction is maintained.

¶39

since 22.12.2015 and sentence of two years
rigorous imprisonment shall come to end on
21.12.2017, further two months imprisonment in
default of payment of fine would also run up to
21.02.2018 which period has already undergone by
the accused-appellant. Therefore, the accused-
appellant shall be set at liberty forthwith unless
and until he is wanted in connection with any
other case.

Vikky v. State of U.P.

Case brief

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What did the court decide?

What the court decided

Issues for consideration

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Parties & counsel

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Vikky v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sompal and Another Vs State of U.P.

Range Lal Vs State of U.P.

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