2020 (9) TMI 1067 - HC - Indian Laws

Reduction in the sentence awarded - Smuggling - truck was carrying illicit drugs - offences punishable under Sections 21(c) and 25 of the NDPS Act - HELD THAT - This Court is of the view that there are certain mitigating circumstances which are required to be considered. The petitioner was the only male member of his family, which comprises of his widowed mother, his wife a daughter. It is also relevant to note that the appellant is not involved in any other case and has no criminal antecedents - It is also material to note that in BALWINDER SINGH VERSUS ASSTT. COMMISSIONER, CUSTOMS CENTRAL EXCISE 2005 (2) TMI 127 - SUPREME COURT , 175 Kgs of Heroin and 39 Kgs of Opium of foreign origin was recovered from the petitioner. However, the Court noted that the petitioner was convicted of this offence for the first time and considering the facts and circumstances reduced the sentence awarded. The appellant has been in custody since 04.02.2010 and has served more than ten years and six months of his prison sentence. His conduct in jail is also reportedly satisfactory. Considering the above, the sentence awarded to the appellant is reduced from twelve years rigorous imprisonment to the sentence already served. The appellant shall pay the fine of ₹1,00,000/- as imposed and in default of which shall serve simple imprisonment for a further period of three months instead of one year as directed by the impugned order dated 29.03.2016. Appeal allowed in part.

Summary

Issues:
Conviction under Section 21(c) of the NDPS Act, 1985 and sentencing.
Compliance with Section 50 of the NDPS Act.
Fairness of trial procedure.
Safekeeping of case property and possibility of tampering.
Authorization to investigate NDPS cases.
Reduction in the sentence awarded.

Analysis:
1. The appellant appealed against a judgment convicting him under Section 21(c) of the NDPS Act, 1985, and sentencing him to twelve years of rigorous imprisonment with a fine. The case involved the recovery of heroin from a truck based on secret information received by intelligence officers. The truck was searched, and heroin was found in heat-sealed packets. Chemical analysis confirmed the presence of heroin. The appellant's residential premises were also searched, yielding no incriminating evidence except for a diary with transactions and phone numbers.

2. The prosecution presented a comprehensive case with nineteen witnesses, including intelligence officers, a chemical examiner, and an appraiser. The chain of custody of the seized substances was established, ensuring the integrity of the evidence. The defense raised initial contentions regarding recovery, compliance with Section 50 of the NDPS Act, trial procedure fairness, safekeeping of case property, and authorization to investigate NDPS cases, but these contentions were not substantiated.

3. The appellant's challenge to the trial procedure was based on the lack of pre-charge evidence recording and cross-examination opportunities. However, this contention was resolved by referring to a previous court decision. The appellant's new counsel focused on seeking a reduction in the sentence, citing mitigating circumstances such as being the sole earner for his family, his age, and lack of criminal history. The court considered these factors, along with the quantity of heroin involved, in deciding to reduce the appellant's sentence to time already served.

4. The court acknowledged the mitigating circumstances, such as the appellant being the only male member supporting his family and having no prior criminal record. A comparison was made to a previous case where a sentence was reduced despite a larger quantity of contraband being involved. The appellant had already served a significant portion of the sentence, and his conduct in prison was reported as satisfactory, leading to the decision to reduce his remaining sentence and modify the fine payment terms.

5. The appeal against the conviction under Section 21(c) of the NDPS Act was dismissed, but the sentence was reduced based on mitigating factors. The court allowed for the destruction of the contraband and disposal of the seized truck, as there was no need to preserve the case property following the upheld conviction. The judgment concluded with the disposal of all pending applications related to the case.