State of Hp Vs Devi Chand

2025:HHC:5215

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 327 of 2020 Reserved on: 01.03.2025 Date of Decision: 07.03.2025

State of Himachal Pradesh ...Petitioner Versus Devi Chand ..Respondent Coram Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No For the Appellant/State : Mr. Jitender K. Sharma, Additional Advocate General. For the Respondent : Mr. Ishan Kashyap, Advocate, Legal Aid Counsel.

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Rakesh Kainthla, Judge

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The present appeal is directed against the order of sentence dated 28.03.2019 passed by learned Special Judge Chamba, Division Chamba, H.P. (Learned Trial Court) vide which respondent (accused before the learned Trial Court) was sentenced to undergo rigorous imprisonment for three months, pay a fine of ₹ 6,000/- and in default of payment of fine to further undergo simple imprisonment for 15 days for the commission of an offence punishable under Section 20(b)(ii) (B) of the Narcotic Drugs and Psychotropic Substances Act (in short

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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‘NDPS Act’). (The p arties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

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Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for possessing 446 grams of charas. The matter was listed before the learned Trial Court for consideration of charge on 28.03.2019 when the accused filed an application to confess the commission of the crime. The learned Trial Court framed the charge and put it to the accused, to which he pleaded guilty. The learned Trial Court convicted the accused and sentenced him as aforesaid.

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Feeling aggrieved and dissatisfied with the sentence imposed by the learned Trial Court, the State has filed the present appeal seeking enhancement of the sentence awarded by the learned Trial Court. It has been asserted that the accused was found in possession of 446 grams of charas, which is a huge quantity. Such an offence can be punished with rigorous imprisonment for a term which may extend to 10 years and with a fine which may extend to ₹1,00,000/-. The accused had

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pleaded guilty before the learned Trial Court, and the learned Trial Court sentenced the accused to undergo rigorous imprisonment only for three months. The sentence imposed by the learned Trial Court is highly inadequate. A large number of cases are being registered under the NDPS Act, and a deterrent sentence has to be awarded in such cases. Therefore, it was prayed that the present appeal be allowed and the sentence imposed by the learned Trial Court be enhanced.

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I have heard Mr. Jitender K. Sharma, learned Additional Advocate General for the appellant/State and Mr. Ishan Kshayap, learned Legal Aid Counsel for the respondent.

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Mr. Jitender K. Sharma, learned Additional Advocate General, submitted that the learned Trial Court erred in sentencing the accused to undergo rigorous imprisonment for three months only. The accused had confessed to the possession of 446 grams of charas, which is a huge quantity and could have been meant for self-consumption. The offences involving narcotics are on the increase, and a deterrent sentence should have been awarded in such cases. He prayed that the present appeal be allowed and the sentence imposed by the learned Trial

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Court be enhanced. He relied upon the judgment of this Court in State of Himachal Pradesh vs Jindu Ram, Criminal Appeal No. 404 of 2018, decided on 6^th November 2018 , in support of his submission.

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Mr. Ishan Kashyap, learned Legal Aid Counsel for the accused, submitted that the Courts have favoured a lenient sentence when a person pleads guilty, showing his contrition and desire to reform. He relied upon the judgment of the Hon’ble Supreme Court in Fukunaga Gun vs The State of Himachal Pradesh SLP (Crl.) No. of 2023 arising out of Diary No. 20914 of 2023 and judgment of the High Court of Punjab and Haryana in U.T. Chandigarh vs Naveen Katoch CRA-S-200-2019 in support of his submission.

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I have considered the submissions made at the bar and have gone through the records carefully.

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The learned Trial Court framed the charge against the accused for possessing 440 grams of charas to which he pleaded guilty. The learned Trial Court sentenced the accused as aforesaid. A similar situation arose before this Court in Jindu Ram (supra) wherein the accused had confessed to the

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possession of 798 grams of charas, and he was sentenced to undergo imprisonment for the period already undergone during investigation and trial, pay a fine of ₹40,000/- and in default of payment of fine to undergo simple imprisonment for four months. The Division Bench of this Court held that the sentence was inadequate. It was observed: -

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“5. We notice that Section 20, reproduced supra, prescribes punishment for contravention, in relation to (a) cultivation of cannabis plant, and (b) production, manufacture, possession, sale, purchase, transport, imports, etc.

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In relation to the first part, by virtue of sub-clause (i) clause (a) of Section 20 of the Act, the trial Court is vested with the discretion of imposing punishment of rigorous imprisonment, which may extend to ten years and shall also be liable to pay fine, which may extend to one lakh rupees.

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With regard to the later part, one notices that the Section is split into three parts - where the quantity is small, punishment of rigorous imprisonment for a term which may extent to one year or with fine which may extend to ten thousand rupees or with both. What would be a small quantity is prescribed under Section 2(xxiiia) of the Act.

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If the offence is for commercial quantity, then the rigorous imprisonment shall not be less than ten years, but may extend to twenty years and shall also be liable to fine, which shall not be less than one lakh rupees, but which may extend to two lakh rupees. In exceptional cases, this amount can exceed the said amount.

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There is third fact situation envisaged under the Act and that being where the quantity involved is less than commercial but greater than a small quantity. The statute

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provides leeway for the imposition of penalty, which is rigorous imprisonment for a term of up to ten years and also a fine which may extend up to one lakh rupees.

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In the instant case, we find the trial Court to have imposed a sentence, which is not in the light of the aforesaid principles laid down by the Apex Court. The reasons assigned are (a) that the accused convict is a first offender, (b) that he is the sole bread earner of the family, and (c) honest admission of guilt.

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Now, this alone cannot be a parameter for deciding the quantum of a sentence. Neither there is any proof of the second factor nor is there any discussion as to why under the circumstances, where the case property, which was almost touching the commercial quantity, the accused be sentenced for a smaller quantity.

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In view of the same, the impugned order dated 2.5.2018, passed by the trial Court in Case No. 2-R/3 of 2017, titled as State v. Jindu Ram, is quashed and set aside. We remand the matter back to the trial Court for consideration afresh. The trial Court shall, after carefully appreciating the material placed on record by the parties, pass a fresh order on the issue of the quantum of sentence, be it imprisonment or imposition of a fine, in accordance with the law. This he shall positively do within a period of four weeks from the date of appearance of the parties.”

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This judgment is binding on this Court, hence, this Court cannot follow the judgment in Naveen Katoch (supra).

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Fukunaga Gun (supra) was not a case of confession, and the Hon’ble Supreme Court had reduced the sentence because of the facts of the case. Thus, no advantage can be derived from the cited judgments.

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It was submitted that the learned Trial Court erred in convicting the accused without affording proper opportunity to him. This submission is factually incorrect. The accused had filed an application through his counsel showing his intention to plead guilty. He further claimed that a plea of guilt was being made by him voluntarily without any promise, threat or inducement from any quarter. Learned Trial Court also noticed in the judgment that the accused was told that he was not bound to confess, and if he confessed, it could be used against him. He was also told about the punishment which could be imposed. However, the accused persisted in his desire to confess by pleading guilty. He was duly represented by his counsel, and, therefore, the learned Trial Court cannot be faulted for accepting the plea of the accused. Hence, the submission that the learned Trial Court erred in convicting the accused based on the plea of guilty is not acceptable.

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In view of the above, the present appeal is allowed and the matter is ordered to be remanded to the learned Trial Court for passing the adequate sentence upon the accused. The parties are directed to appear before the learned Trial Court on 27^th March, 2025.

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A copy of this judgment along with the record of the learned Trial Court be sent back forthwith so that the same could reach well before the next date of hearing. Pending applications, if any, also stand disposed of.

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The observations made hereinbefore shall remain confined to the disposal of the appeal and the learned Trial Court shall proceed further without being influence in any manner whatsoever.

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(Rakesh Kainthla) Judge

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07^th March, 2025 (ravinder)

State of Hp v. Devi Chand

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State of Hp v. Devi Chand

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