Partly allowed

Kulwant v. State of Hp

Himachal Pradesh HC5 Dec 2023CR.A/230/2020

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh dismissed criminal appeals challenging convictions under the NDPS Act for possession of charas. While confirming the conviction due to reliable police testimony, the Court modified the substantive sentence from 12 to 10 years rigorous imprisonment and reduced the default sentence from 3 years to six months as the appellants were first-time offenders with no crimi

What did the court decide?

Substantive sentence reduced to 10 years rigorous imprisonment; default sentence for non-payment of fine reduced to six months rigorous imprisonment.

Kulwant Vs State of Hp — Narcotics (NDPS) | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. Appeal No. 93 of 2020 along with Cr. Appeal No. 230 of 2020.

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Date of Decision : 5th December, 2023.

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1. Cr. Appeal No. 93 of 2020 Hem Raj …..Appellant. Versus State of H.P. …..Respondent. 2. Cr. Appeal No. 230 of 2020 Kulwant …..Appellant. Versus State of H.P. …..Respondent.

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Coram

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon’ble Mr. Justice Satyen Vaidya, Judge.

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Whether approved for reporting? No.

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For the Appellants: Mr. N.K. Thakur, Sr. Advocate, with Mr. Divya Raj Singh, Advocate, for the appellant in Cr. Appeal No. 93 of 2020.

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Ms. Neelam Kaplas, Advocate, for the appellant in Cr. Appeal No. 230 of 2020.

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For the Respondent: Mr. I.N. Mehta, Sr. Addl. A.G. with Mr. Navlesh Verma, Addl. A.G. and Mr. J.S. Guleria, Dy. A.G.

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Satyen Vaidya, Judge (Oral)

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Both these appeals are being decided together as these arise out of the same judgment and order of sentence.

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The appellants in both the appeals have been convicted for offences under Section 20, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act (for short “NDPS Act”), vide judgment dated 07.11.2019, passed by learned Special Judge, Chamba Division, Chamba (H.P.). in Sessions Trial No. 8 of 2015. The appellant have been

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sentenced as under

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Name of Convict	Offence of which convicted	Sen	ten	ce		Default Sentence
Kulwant Singh	Section 20 (b)(ii)	RI	for	12	years	RI for one year
	(C) NDPS Act	and		fine	Rs.
		1La	kh	t	wenty

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Kulwant Singh	Sections 25 and 29 NDPS Act	thousa RI for and 1Lakh thousa	nd 12 fine nd	years Rs. twenty	RI for one years
Hem Raj	Section 20 (b)(ii) (C) NDPS Act	RI for and 1Lakh thousa	12 fine nd	years Rs. twenty	RI for one year
Hem Raj	Sections 25 and 29 NDPS Act	RI for and 1Lakh thousa	12 fine nd	years Rs. twenty	RI for one years

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Both the sentences have been ordered to run concurrently.

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The case as set up by the prosecution was that on 22.12.2014, a police party consisting of H.C. Virender Singh (PW11), C. Yograj (PW2), HHC Mohammad Aslam (PW3), C. Sanjay Kumar (PW5), C. Sunil Kumar and C. Sanjay Kumar No. 145 had laid ‘Nakka’ at Tunnuhatti Police Barrier in District Chamba, H.P.

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At about 3.50 AM, one ‘Esteem’ car bearing registration No. PB65A9377 reached the Nakka from the side of Banikhet. The car was stopped for checking. Appellant Kulwant was on driving seat and appellant Hem Raj was found occupying the front passenger seat. Strong smell of Cannabis appeared on rolling down of the window

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shutters of the car. Police got suspicious and an option was sought from the appellants in respect of their search to be carried either by the police or in the presence of a Gazetted Officer or a Magistrate. The appellants opted to be searched in presence of a Gazetted Officer. Dy. S.P. Santosh Sharma (PW7) was informed, who reached the spot and authorised H.C. Virender Singh (PW7) to carry the search. Whereas nothing was recovered from the persons of the appellants, a carry bag was found placed under legs of the appellant Hem Raj. On checking of the said carry bag, 4 Kg. 100 grams of charas (cannabis) was recovered.

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The police seized the recovered contraband vide seizure memo Ex.PW2/G. Relevant columns of the NCB form, Ex.PW4/E were filled. Rukka Ex.PW8/A was prepared and sent to Police Station for registration of FIR. Consequently, FIR Ex.PW9/A was recorded.

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PW12 SHO Kripal Singh reached the spot and took over the investigation. He prepared the site plan, Ex.PW12/A. The sealed parcel containing contraband was resealed vide memo Ex.PW1/D. The appellants were formally arrested vide arrest memo Ex.PW1/C. The contraband along with related documents and articles was deposited in the ‘Malkhana’ of the police station.

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The seized substance was sent to SFSL Junga, which reported the same to be the sample of charas.

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On Completion of investigation, both the appellants were charged for offences under Sections 20, 25 and 29 of the NDPS Act in Sessions Trial No. 8 of 2015. Prosecution examined total 13 witnesses besides proving on record various documents. The appellants were separately examined under Section 313 of the Cr.P.C. One witness H.C. Raj Pal (DW1) was examined in defence.

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Learned Special Judge, on the basis of material on record, found all the charges proved against the

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appellants. Accordingly, the appellants have been convicted and sentenced as noted above.

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We have heard learned counsel for the parties and have also gone through the entire record carefully.

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Learned counsel for the appellants though termed the impugned judgment as wrong, illegal but they could not point out any such illegality or infirmity therein, which could be sufficient to pursuade this Court to take a different view. However, it has been contended that the sentence imposed upon the appellants is excessive keeping in view the fact that none of the appellants had any past criminal history.

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Despite there being no serious challenge to the impugned judgment made during the hearing of the case on behalf of the appellants, in order to satisfy ourselves as to the legality and propriety of findings and conclusions drawn by learned Special Judge, we have gone through the

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statements of the prosecution witnesses and the documents on record.

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PW11 H.C. Virender Singh, PW2 Constable Yograj, PW3 HHC Mohammad Aslam and PW5 Constable Sanjay Kumar have been examined as spot witnesses. Their version before the Court has been in unison. As per these witnesses, police party including themselves along with constables Sunil Kumar and Sanjay Kumar No. 145, had left Chamba at 10.15 P.M. on 21.12.2014 in official vehicle No. HP481220 for ‘Nakabandi’ and traffic checking towards the areas of Balu, Parel, Goli, Banikhet and Tunnuhatti etc. Recording of DDR No.6, Ex.PW2/J in this regard has been proved on record.

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PW2, PW3, PW5 and PW11 have also been consistent in their version regarding ‘Nakka’ having been laid by them at ‘Tunnuhatti’ barrier. There has been harmony in their depositions with regard to the stopping of car No. PB65A9377 at about 3.50 A.M. on 22.12.2014

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and the presence of both the appellants therein. The option afforded to the appellants for being checked either by the police party or in the presence of Magistrate/Gazetted Officer also stands proved through the statements of these witnesses as also the consent memos Ex.PW2/A and Ex.PW2/B. The corroboration to this part of the prosecution story has been rendered by Dy. S.P. Santosh Sharma (PW7) by making a trustworthy deposition before the Court.

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The recovery of contraband and seizure thereof has also been proved through the statements of all the above noted witnesses. Seizure memo Ex.PW2/G has also been proved on record. The defence could not extract anything material from the cross examination of the spot witnesses.

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There is nothing on record, from which, it may be inferred that the seized contraband was tampered with at any stage. PW12 SHO Kripal Singh had deposed that

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he had resealed the parcel on the spot itself by placing five seals with impression “K” and had prepared the memo Ex.PW1/D in this behalf. SFSL report, Ex. Px reveals that the entire bulk of seized contraband was received in the laboratory on 24.12.20214 with five seals having seal impression “N” and five seals with seal impression “K” intact. On comparison of such impression with specimens of seal impressions, no discrepancy was found. The prosecution also examined witness HHC Amrik Singh (PW 6), who had taken the contraband from Police Station to SFSL Junga on 23.12.20214 vide R.C. No.190/2014, Ex.PW4/B. From the statement of this witness, there is nothing to suggest that the case property was tampered with at any stage. MHC of Police Station Chowari has been examined as PW4. He has also proved the safe custody of the contraband in the Malkhana of Police Station and the proceedings regarding transit of seized contraband to and from SFSL Junga.

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The appellants had nowhere disputed SFSL report, Ex. Px, according to which the sample of contraband examined in the laboratory was found to be that of charas (cannabis).

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We have not found any inconsistency or contradiction in the statement of prosecution witnesses, which could render the prosecution case vulnerable. Merely because the independent witnesses were not associated will not render the testimony of police witnesses unreliable. Reference can be made to the observations made by the Hon'ble Supreme Court in Sathyan vs. State

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of Kerala, 2023 INSC 703, wherein, it has been held as under:

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“22. Conviction being based solely on the evidence of police officials is no longer an issue on which the jury is out. In other words, the law is well settled that if the evidence of such a police officer is found to be reliable, trustworthy then basing the conviction thereupon, cannot be questioned and the same shall stand on firm ground.........”

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By applying the aforesaid exposition of law to the facts of the case, we are of the considered view that the defence has not been able to extract any material from the statements of the prosecution witnesses, which could cast any doubt on the prosecution story and thus, the non association of independent witnesses will not affect the conviction of the appellants in any manner. Moreover, the spot witnesses have stated that an attempt was made to associate the independent witnesses by summoning the persons deployed at barriers, but they had refused to associate on account of exigency of their duties and paucity of staff. Needless to say, the time when the appellants were apprehended, was such, when the availability of independent witnesses would ordinarily not be there.

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In view of the above discussion, we find that the findings and conclusion drawn by the learned Special Judge need no interference.

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As regards, substantive sentence imposed upon the appellants, it can be seen that under Section 20 (ii) (c) the prescribed punishment is rigorous imprisonment for a term which shall not be less than ten years but may extend to 20 years. The imposition of fine has also been made mandatory which as per the prescription of the aforesaid provisions shall not be less than Rs. One Lakh but which may extend to two lakh rupees. The Court has further been vested with the power to impose fine exceeding Rs. two lakh by recording reasons in that behalf.

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While dealing with a similar proposition, a Division Bench of this Court (in which one of us Justice Tarlok Singh Chauhan, J. was the member) rendered the judgment dated 30.08.2023 in Cr. Appeal No. 204 of 2017, titled as Dila Ram vs. State of H.P . after taking notice of the exposition of law, as reproduced hereinafter, and reduced the substantive sentence to rigorous

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imprisonment of 10 years from rigorous imprisonment of 12 years as imposed by the learned Special Judge:

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“10 In Balwinder Singh’s case (supra) (2005) 4 SCC 146, the appellant therein was found to be in conscious possession of 175 kg of heroin and 39 kg of opium of foreign origin and was sentenced to imprisonment for a period of 14 years, however the Hon’ble Supreme Court reduced the sentence from 14 years to 10 years by recording following reasons:

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In this case, the appellant Tarlochan Singh was the driver of the vehicle DIL 3372. He was also in custody of vehicle PJA 8677. His statement was recorded under Section 108 of the Customs Act. From his possession the articles of opium and heroin were recovered and in his statement he admitted that he knew about the presence of these drugs in the vehicleand about the transport of the: drugs illegally from Ludhiana to Bombay. It is evident from the statement made by him that he committed the offences punishable under Sections 18, 21, 22, 23, 25, 29 and 30 of the NDPS Act. We find no reason to interfere with the conviction and sentence entered against the appellant Tarlochan Singh and the criminal appeal stands dismissed. We are told that the appellant was convicted of this offence for the first time. The sentence imposed on him was imprisonment for a period of 14 years. Having regard to the facts and circumstances of this case, we reduce the sentence from 14 years to 10 years each for the offences under the NPDS Act and for the offence under Section 120B IPC. The sentences shall run concurrently.

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The direction to pay fine is maintained, but the default sentences shall also run concurrently.

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11 In Shahejadkhan Mahebubkhan Pathan’s case (supra) (2013) 1 SCC 570, the Hon’ble Supreme Court, in a case relating to recovery of 500 gm brown sugar (narcotic substance) modified the default sentence by taking into consideration the fact that the appellant therein was very poor and had to maintain his family and was first offender. It was observed as under:

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It is clear and reiterated that the term of imprisonment in default of payment of fine is not a sentence. To put it clear, it is a penalty which a person incurs on account of nonpayment of fine. On the other hand, if sentence is imposed, undoubtedly, an offender must undergo unless it is modified or varied in part or whole in the judicial proceedings. However, the imprisonment ordered in default of payment of fine stands on a different footing. When such default sentence is imposed, a person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. Accordingly, he can always avoid to undergo imprisonment in default of payment of fine by paying such an amount. In such circumstance, we are of the view that it is the duty of the Court to keep in view the nature of offence, circumstances in which it was committed, the position of the offender and other relevant considerations such as pecuniary circumstances of the accused person as to character and magnitude of the offence before ordering the offender to suffer imprisonment in default of payment of fine. The provisions of Sections 63 to 70 of IPC make it clear that an amount of fine should not be harsh or

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excessive. We also reiterate that where a substantial term of imprisonment is inflicted, an excessive fine should not be imposed except in exceptional cases.

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(2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under Section 29.” It is clear that clause (b) of subsection (1) of Section 30 of the Code authorizes the Court to award imprisonment in default of fine up to 1/4th of the term of imprisonment which the Court is competent to inflict as punishment for the offence. However, considering the circumstances placed before us on behalf of the appellantsaccused, viz., they are very poor and have to maintain their family, it was their first offence and if they fail to pay the amount of fine as per the order of the Additional Sessions Judge, they have to remain in jail for a period of 3 years in addition to the period of substantive sentence because of their inability to pay the fine, we are of the view that serious prejudice will be caused not only to them but also to their family members who are innocent. We are, therefore, of the view that ends of justice would be met if we order that in default of payment of fine of Rs.1.5 lakhs, the appellants shall undergo RI for 6 months instead of 3 years as ordered by the Additional Sessions Judge and confirmed by the High Court.

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12 In Yasihey Yobin’s case (supra)(2014) 13 SCC 344, the Hon’ble Supreme Court considered the fact that accused No.1 therein was old and suffering from ailment and thus, the sentence was modified as under:

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“16. Shri Altaf Ahmad, would submit that the Trial Court

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in course of its order has observed that Accused No. 1 is

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old and is suffering from several ailments and therefore requests for modification of the sentence ordered by the Trial Court and so confirmed by the High Court. We see merit in the submission made by the learned senior counsel. Keeping this aspect in view, we modify the sentence of Accused No.1 from 13 years to 10 years. However, insofar as the conviction of Accused No.2 is concerned, we are not inclined to grant any remission and accordingly confirm the judgment and order passed by the Trial Court and so confirmed by the High Court and maintain the fine imposed on him. We further direct that the appellants will surrender after six weeks to serve out the remaining period of sentence. Their bail bonds stands cancelled.”

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In Baldev Singh’s case (supra) (2015)2 SCALE 308, the appellant therein was found to be in possession of 13 quintals and 20 kg of poppy husk and the Hon’ble Supreme Court reduced the sentence from 12 years to 10 years by recording following reasons:

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To assail the prosecution case, it was contended that Ram Singh PW1’s testimony cannot be relied upon as PW 1 has stated that he remained busy in the investigation in the present case for 78 hours but the fact that Ram Singh has been associated in the investigation of another FIR No.235 dated 17.09.1990 relating to Police Station Sadar Dabwali at 5.30 a.m. in which one Bhoop Singh was arrested while carrying one kilogram and hundred grams opium, which according to the appellant, renders the presence of Ram SinghASI in the instant case highly doubtful. The learned Sessions Judge accepted the above submission of the appellant to hold that evidence of Ram

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SinghASI does not inspire confidence. As observed by the High Court, the learned Sessions Judge overlooked that there is no evidence as to the distance between the places of recovery in both the cases. As observed by the High Court, it has come on record that in both the FIRs the place of occurrence has been stated as “in the area of Village Kingre, at a distance of 18 K.M. towards the East, Deh.No.33”. It appears from the above entry in the FIR, that the place of occurrence was the same for both the FIRs recorded on that night. The case relating to Bhoop Singh in FIR No.235 resulted in acquittal. Referring to the acquittal of Bhoop Singh, High Court observed that the same would warrant an inference that what is incorporated in FIR No.234 is incorrect and that defence has not been able to make any dent in the testimony of Ram Singh ASI to discard his evidence as untrustworthy. We find no reason to take a different view.

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In Usman Shamshudeen Shekh’s case (supra) 2016(1) Sim. LC 283, a learned Division Bench of this Court by placing reliance on the judgment rendered by the Hon’ble Supreme Court in Shahejadkhan Mahebubkhan Pathan vs. State of Gujarat, (2013) 1 SCC 570, in a case relating to recovery of 1.9 kg charas reduced the sentence from 12 years to 10 years. It shall be apt to reproduce relevant observations as contained in paras 42 to 45, which read as under:

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However we are in agreement with learned counsel for the accused that the sentence so imposed by the Court below is harsh and on the higher side. Contraband substance, so recovered was of commercial quantity weighing 1.9 kgs. The accused cannot be said to be a man of means. It is his first offence. We notice that both

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before the trial Court as also this Court, he stands represented by a Legal Aid Counsel, who undoubtedly have put in their best efforts.

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The Hon’ble Supreme Court of India in Shahejadkhan Mahebubkhan Pathan v. State of Gujarat, (2013) 1 SCC 570, has held as under:

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“12. It is clear and reiterated that the term of imprisonment in default of payment of fine is not a sentence. To put it clear, it is a penalty which a person incurs on account of nonpayment of fine. On the other hand, if sentence is imposed, undoubtedly, an offender must undergo unless it is modified or varied in part or whole in the judicial proceedings. However, the imprisonment ordered in default of payment of fine stands on a different footing. When such default sentence is imposed, a person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. Accordingly, he can always avoid to undergo imprisonment in default of payment of fine by paying such an amount. In such circumstance, we are of the view that it is the duty of the Court to keep in view the nature of offence, circumstances in which it was committed, the position of the offender and other relevant considerations such as pecuniary circumstances of the accused person as to character and magnitude of the offence before ordering the offender to suffer imprisonment in default of payment of fine. The provisions of Sections 63 to 70 of IPC make it clear that an amount of fine should not be harsh or excessive.”

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Similar view was taken by the apex Court in Shanti Lal v. State of H.P., 2007 (11) SCC 243.

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It has not come on record that accused is a kingpin, regularly indulging in the trade of manufacture, supply or sale of narcotic substance.

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While taking note of overall attending circumstances, we reduce the sentence of rigorous imprisonment, so imposed by the trial Court, from 12 years to ten years, being the minimum sentence so prescribed under the Act for an offence of this nature and also reduce the amount of fine from Rs.15,00,000/(fifteen lacs), so imposed by the trial Court, to `1,00,000/ (one lac). We direct that in the event of default in the payment of fine, the accused shall further undergo rigorous imprisonment for a period of one year.

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In Pradeep Bachhar’s case (2018) 13 SCC 600, the Hon’ble Supreme Court reduced the substantial sentence of the appellant therein from 12 years to 10 years, which earlier had been reduced by the High Court from 15 to 12 years. It shall be apt to reproduce relevant observations as contained in paras 2 to 4 of the judgment, which read as under:

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The High Court reduced the sentence from 15 years to 12 years. The fine of Rs. 1,50,000/ was retained, but the default sentence was reduced to two years. When the matter came up before this Court, on 09.10.2017, notice was issued on the quantum of sentence.

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A similar situation came up for consideration before this Court in Shahejadkhan Mahebubkhan Pathan Vs. State of Gujarat, reported in (2013) 1 SCC 570, whereby having regard to the financial and other social conditions of the convicted person, this Court reduced the substantial

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sentence to 10 years and the default sentence to six months. The relevant considerations are available at paragraphs 15 and 16 of the Judgment, which read as follows :

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“15. It is clear that clause (b) of subsection 1 of Section 30 of the Code authorizes the court to award imprisonment in default of fine up to onefourth of the term of imprisonment which the court is competent to inflict as punishment for the offence. However, considering the circumstances placed before us on behalf of the appellantaccused viz. they are very poor and have to maintain their family, it was their first offence and if they fail to pay the amount of fine as per the order of the Additional Sessions Judge, they have to remain in jail for a period of 3 years in addition to the period of substantive sentence because of their inability to pay the fine, we are of the view that serious prejudice will be caused not only to them but also to their family members who are innocent. We are, therefore, of the view that ends of justice would be met if we order that in default of payment of fine of Rs. 1.5 lakhs, the appellants shall undergo RI for 6 months instead of 3 years as ordered by the Additional Sessions Judge and confirmed by the High Court.

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For the reasons stated above, both the appeals are partly allowed. The conviction recorded is confirmed and sentence imposed upon the appellants to undergo RI for 15 years is modified to 10 years. The order of payment of fine of Rs. 1.5 lakhs each is also upheld but the order that in default of payment of fine, the appellants shall undergo RI for 3 years is reduced to RI for 6 months. Since the appellants have already served nearly 12 years in jail, we

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are of the view that as per the modified period of sentence in respect of default in payment of fine, there is no need for them to continue in prison. The appellants shall be set at liberty forthwith unless they are required in any other offence. It is further made clear that for any reasons, if the appellants have not completed the modified period of sentence, they will be released after the period indicated hereinabove is over.”

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Having heard the learned senior counsel appearing for the appellant and the learned counsel appearing for the State, on facts, we do not find any reason to take a different view. Accordingly, the appeal is allowed. The substantial sentence of the appellant is reduced to 10 years and the sentence in default on payment of fine is reduced to six months.

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16 Thus, it would be noticed from the aforesaid judgments that even though in cases involving much larger quantity of narcotic substance, the Hon’ble Supreme Court exercised its discretion while modifying the sentence. 17 However, this court cannot be oblivious to the judgment relied upon by the respondentState in Gurdev Singh vs. State of Punjab (2021) 6 SCC 558 , wherein the Hon’ble Supreme Court in paras 15 and 16 observed as under:

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At this stage, the statement of objects and reasons for enactment of NDPS Act are required to be referred to. Before the NDPS Act 1965 was enacted, the statutory control over narcotic drugs was exercised in India through number of Central and State enactments viz. — The Opium Act, 1857, (b) the Opium Act, 1878 and (c) The Dangerous Drugs Act, 1930. However, with the passage

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of time and developments in the field of illicit drug traffic and drug abuse at national and international level it was noticed and found that

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(i) The scheme of penalties under the aforesaid ACTS was not sufficiently deterrent to meet the challenge of well organized gangs of smugglers;

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(ii) The country has for the last few years been increasingly facing the problem of transit traffic of drugs coming mainly from the neighboring countries and destined mainly to Western countries;

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(iii) During recent years new drugs of addiction which have come to be known as psychotropic substances have appeared on the scene and posed serious problems to national governments.

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Therefore with a view to overcome the aforestated deficiencies the NDPS Act, 1985 came to be enacted. That thereafter to check the menace of dangerous drugs flooding the market, Section 37 of the Act came to be amended and it has been provided that the accused of an offence under the Act shall not be released on bail during trial unless the mandatory conditions provided in Section 37 are satisfied.

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While considering the submission on behalf of the accused on mitigating and aggravating circumstances and the request to take lenient view and not to impose the punishment higher than the minimum sentence provided under the Act it should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims who are vulnerable; it

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cause deleterious effects and deadly impact on the society; they are hazard to the society. Organized activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances shall lay to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, it has a deadly impact on the society as a whole. Therefore, while awarding the sentence/punishment in case of NDPS Act, the interest of the society as a whole is also required to be taken in consideration. Therefore, while striking balance between the mitigating and aggravating circumstances, public interest, impact on the society as a whole will always be tilt in favour of the suitable higher punishment. Therefore, merely because the accused is a poor man and/or a carrier and/or is a sole bread earner cannot be such mitigating circumstances in favour of the accused while awarding the sentence/punishment in the case of NDPS Act. Even otherwise, in the present case, the Special Court, as observed hereinabove has taken into consideration the submission on behalf of the accused that he is a poor person; that he is sole bread earner, that it is his first offence, while not imposing the maximum punishment of 20 years R.I and imposing the punishment of 15 years R.I. only.

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Having gone through the entire law on the subject, it needs to be noticed that in matters of sentence, the Court has been vested with vast discretion and for its proper exercise,

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mitigating and aggravating circumstances would normally be required to be kept in mind by the court.”

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In the instant case also, there is no allegation against the appellants that they had any past criminal history. It has been submitted on behalf of the appellants that they have already undergone about 9 years of substantive sentence each and there has been no complaint whatsoever with respect to their jail conduct and behaviour. This factual aspect has not been disputed on behalf of the State. Taking into consideration all the cumulative facts and circumstances of the case, we are of the considered view that the interest of justice will be met by reducing the substantive sentence of the appellants from 12 years of rigorous imprisonment to 10 years of rigorous imprisonment for offences under Section 20 and also under Sections 25 and 29 of the NDPS Act. Rest of the sentence order shall remain unaffected. Ordered accordingly.

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