Sagar Khute Vs State of Chhattisgarh

1. The present criminal appeal under Section 415(2) of the Bharatiya Nagarika Suraksha Sanhita, 2023 has been preferred by appellant challenging the judgment of conviction and order of sentence dated 24.02.2022 passed by the learned Special Judge (NDPS Act), Saraipali, District Mahasamund (C.G) in Special Sessions Case (NDPS Act) No.07/2017 whereby the appellant has been convicted and sentenced as under:

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Conviction	:	Sentence
U/s 20(b)(ii)(B) of the		RI for 05 years and fine of Rs.5000 in
NDPS Act		default of payment fine, additional RI for 1 month.

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2. During trial, the other accused Bajranglal had died and the trial Court has proceeded with the case against the present appellant.

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3 (i) The allegation against the appellants is that on 15.03.2017 near Saraipali the accused persons were found in joint possession of a total quantity of 15 Kgs. of contraband Ganja, thereby they committed offence punishable under section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

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(ii) . The prosecution case in brief is that on 15.03.2017, Assistant Sub-Inspector Harishchand Dwivedi posted at Saraipali Police Station along with his Staff had left for Padmapur Road Over Bridge at 9.35 am for checking vehicles. While they were checking suspicious vehicles the offending vehicle i.e. Indigo car bearing No. CH.03.S0265 arrived at the spot. On intercepting the offending vehicle and questioning, the driver told his name as Sagar Khunte and the person sitting behind the driver’s seat told his name as Bajrang Lal Rathore. A sack was found near the feet of accused Bajrang Lal in the car, in which, 15 packets of ganja were kept. Upon weighing, it was found that each packet contains 1 K.G., and thus total 15 Kgs., of Ganja was recovered from joint possession of two accused persons. A sample of 100 grams ganja was collected from the seized Ganja and sent to the FSL for examination. After completing the investigation and on complying with other procedural requirements, the charge sheet was filed.

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4. The prosecution has in all examined 13 witnesses and exhibited 39 documents to prove its case. The accused were examined under Section 313 CrPC wherein they pleaded innocence and false implication. After conclusion of trial and considering the evidence of prosecution witnesses and material available on record, learned Trial Court by impugned judgment, convicted and sentenced the appellant as mentioned above.

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5. At this stage, learned counsel for the appellant submits that he does not want to press this appeal on merits and confines his argument only to sentence part. He also submits that out of the maximum jail sentence of 05 years imposed on appellant u/s 20(b)(ii)(B) of NDPS Act for carrying contraband ganja, he had already completed in jail the custody period of 1 year 7 months and 18 days during trial and pendency of this appeal. He submits that the incident took place way back in 2017, since then the

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appellant is facing the lis and there are no criminal antecedents reported against him. He further submits that there is no minimum sentence provided for the offence punishable under Section 20(b)(ii)(B) of the NDPS Act and looking to the quantity of ganja seized, he prays that the sentence of the appellant be reduced to the period already undergone by the appellants in the interest of justice.

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6. Per contra, learned State Counsel supports the impugned judgment and opposes the arguments advanced on behalf of the Appellant. However, he does not dispute the fact that the appellant has no criminal antecedents.

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7. I have heard learned counsel for the parties and have also perused the material available on record including the impugned judgment.

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8. Having gone through the material available on record and the statements of witnesses especially the Investigating Officer/Asst. SubInspector P.W.11 Harish Chand Dwivedi, Constable P.W.8 Haribandhu Barik and Constable Gopal Sahu (P.W.9) who substantially proved the recovery of contraband from the joint possession of the accused persons as also the FSL Report (Ex.P-38) which shows that on examination of the sample material contained in Article-A, it was found to be positive as Ganja , this Court does not find any illegality or infirmity in the findings recorded by the trial Court as regards the conviction of the appellants for the offence punishable u/s 20(b)(ii)(B) of the NDPS Act and it is hereby affirmed.

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9. In case of Mohammad Giasuddin v. State of Andhra Pradesh reported in (1977) 3 SCC 287 , Hon’ble Supreme Court held that the criminal justice system must adopt a therapeutic and rehabilitative approach rather than a purely retributive one. While emphasizing the reformative approach the Court observed that if you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries. Para 9 reads thus :

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“9 . Western jurisprudes and 'sociologists, from their own angle have struck a like note. Sir Samual Romilly, critical of the brutal penalties in the then Britain, said in 1817 :

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"The laws of England are written in blood". Alfieri has suggested : 'society prepares the crime, the criminal commits it’. George Nicodotis, Director of

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Criminological Research Centre, Athens, Greece, maintains that 'Crime is the result of the lack of the right kind of education.' It is thus plain that crime is a pathological aberration, that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by re-culturisation. Therefore, the focus of interest in penology is the individual, and goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore consider a therapeutic, rather than an in 'terrorem' outlook, should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw : 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield : “If you are going to have anything to do with the criminal Courts, you should see for yourself the conditions under which prisoners serve their sentences.”

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10. In view of the above discussion and applying the analogy of reformative approach laid down in Mohammad Giasuddin (supra) and keeping in view the fact that the sentence imposed upon the appellant is 05 years out of which, he had already served the jail sentence of 1 year 7 months and 18 days and there is no minimum sentence prescribed for the offence punishable under Section 20(b)(ii)(B) of the NDPS Act as also the fact that appellants have suffered the mental agony and trauma of protracted trial and further looking to his present age as also the fact that as per Arrest Memo (Ex.P-18), the appellant had studied upto 12 th class and no criminal antecedents are reported against him, it will be just and proper if the sentence of 5 years RI awarded by the trial court for offence under section 20(b)(ii)(B) is reduced to the period already undergone by the appellant. Accordingly, while maintaining the appellant’s conviction, the sentence awarded to him is hereby reduced to the period already undergone. However, it is made clear that the sentence of fine of Rs.5000/as imposed by the trial Court and the default stipulation thereof, shall remain intact.

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11. In the result, the appeal is allowed in part to the extent indicated hereinabove.

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12. The appellant is on bail. He is not required to undergo further substantive jail sentence.

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13. Let a certified copy of this judgment along with the original record be transmitted to the concerned trial Court forthwith for information and necessary action.

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Sd/-

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(Sanjay Kumar Jaiswal) Judge

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Rao

Sagar Khute v. State of Chhattisgarh

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Sagar Khute v. State of Chhattisgarh

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