Rakesh Nishad Vs State of Chhattisgarh

1. This appeal has been preferred by the appellant under Section 415 (2) of BNSS challenging the impugned judgment of conviction and order of sentence dated 08.01.2025 passed by learned Special Judge (NDPS), District Raipur (C.G.) in Special Sessions Case No. 75/2024 whereby the appellant has been convicted for offence under Section 20 (b) (ii)(B) of NDPS Act and sentenced to undergo

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rigorous imprisonment for 5 years with fine of Rs.30,000/-, in default of payment of fine, to undergo additional R.I. for 6 months.

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2. The case of prosecution, in brief, is that, on 27.01.2024, Police Assistant Sub-Inspector Vijay Kumar Netam of Tikrapara Police Station, Raipur, the investigating officer, received information from an informer that a man wearing a sky blue shirt, black pants, with short hair, was looking for a customer to sell the illegal drug Ganja in his dark blue bag near the new bus stand, Bhatagaon. This information was recorded in the police station’s documents and conveyed to the senior officer. After completing the necessary legal formalities, a search was conducted, and a substance resembling Ganja was found in the appellant’s possession. It was weighed and seized. After weighing, the quantity of the seized article was found to be 6 kilograms. Thereafter, a case was registered against the appellant, and the seized substance was sent to the Forensic Science Laboratory for testing. As per the test report (Ex.P-51), the seized substance was confirmed to be Ganja. After completion of the investigation, charge sheet was filed.

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3. During the course of trial, in order to bring home the offence, prosecution examined as many as 9 witnesses and exhibited 51 documents in support of its case. The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication.

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4. Learned trial Court, after appreciation of oral and documentary evidence on record, convicted and sentenced the appellant as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred by the appellant questioning the legality, validity and correctness of the impugned judgment.

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5. Learned counsel for the appellant submits that he does not want to press this appeal on merits and confines his argument only on sentence part. He submits that the appellant is now more than 39 years of age and has family responsibilities and he is in jail since 27.01.2024 thereby he has completed about 1 year 11 months 17 days of jail sentence. The incident took place in the year 2024 and since then the appellant is facing the lis. Hence, considering all these facts, the sentence of the appellant may be reduced to the period already undergone by him in the interest of justice.

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6. Per contra, learned counsel appearing for the State, supported the impugned judgment and opposed the arguments advanced on behalf of the Appellant.

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7. Heard learned counsel for the parties and perused the record including the impugned judgment.

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8. Having gone through the material available on record and the evidence of Ranjan Bansal (PW-2), Vijay Kumar Netam (PW-9), Ghanaram Nirmalkar (PW-5), seizure memo (Ex.P-25) and the report of State Forensic Science Laboratory (Ex.P-51), establish the involvement of the appellant in the crime in question. This Court does not find any illegality or infirmity in the finding recorded by the Trial Court as regards the conviction of the appellant for offence punishable under Section 20 (b) (ii)(B) of NDPS Act which is based on evidence available on record and it is hereby affirmed.

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9. As regards the sentence, in the matter of Mohammad Giasuddin v. State of Andhra Pradesh reported in (1977) 3 SCC 287 , Hon'ble Supreme Court has 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 and held in para-9 as follows:

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"9. Western jurisprudes and 'sociologists, from their own angle have struck a like note. Sir Samual Romilly, critical of

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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 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 the light of the decision of the Hon’ble Supreme Court in the case of Mohammad Giasuddin (supra) and keeping in view the fact that the incident had taken place in the year 2024. At that time, the appellant was aged about 38 years and now he must be more than 39 years having family responsibility. The appellant is facing the lis since 2024 and is in jail since 27.01.2024 thereby completed about 1 year 11 months 17 days of jail sentence. Taking into consideration all these facts, the ends of justice would serve if the appellant is sentenced to the period already undergone by him.

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11. Accordingly, the conviction of the appellant for offence under

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Section 20 (b) (ii)(B) of NDPS Act is maintained and the sentence of RI for 5 years is reduced to the period already undergone by him i.e. 1 year 11 months 17 days. However, the fine amount and its default stipulation imposed by the trial Court shall remain intact.

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12. Consequently, the appeal is partly allowed to the extent indicated hereinabove.

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13. The appellant is in jail. He shall be released forthwith if not required to be detained in connection with any other case or default.

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14. Let a certified copy of this judgment, along with the original record, be transmitted forthwith to the concerned trial Court. A copy of this judgment shall also be supplied to the Superintendent of the jail where the appellant is serving his sentence, for information and necessary action.

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Sd/(Sanjay Kumar Jaiswal) Judge

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Shubham

Rakesh Nishad v. State of Chhattisgarh

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Rakesh Nishad v. State of Chhattisgarh

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