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TMI Blog2015 (8) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... the sentences having been ordered to run concurrently with the benefit of Section 428. 2. It has been contended on behalf of the petitioner that the fundamental right of the petitioner has been violated in as much as even though she had pleaded not guilty and had claimed to be tried, the Trial Court on the basis of a letter submitted by the petitioner in desperation, pleading guilty in a way, convicted the appellant without application of mind or following the requirements of law for convicting a person in a sessions triable case. The further ground of challenge is that the petitioner was not afforded the facility of a translator even though she did not understand the language in which the evidence was recorded. 3. Since the Trial Court accepted the statement of the petitioner as an acceptance of guilt, no appeal could have been filed except for the legality/severity of the sentence. 4. Hence the present petition. 5. The facts giving rise to the conviction of the petitioner is as hereunder. 6. Ms.Parul Sharma (PW.3) Air Custom Officer received specific information on 1.2.2013 that the petitioner who was going to Malaysia by Flight No.MH 0191 was in possession of narcotic drug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, 12.2.2014, 16.4.2014 and 14.8.2014 the counsel for the petitioner did not appear. As a result thereof some of the witnesses could not be cross examined. 10. On 25.4.2014, the petitioner expressed her inability to afford a counsel and a legal aid counsel was provided to her. The legal aid counsel also failed to appear in the Court on 16.5.2014. 11. Till 3.7.2014 only three witnesses had been examined by the prosecution. The legal aid counsel provided to the petitioner fell ill and because of her illness there could be no representation on 14.8.2014 also. It was under such circumstances that an application was filed by the petitioner stating that she pleads guilty and that she was carrying Ketamine Hydrochloride at the instance of someone and she served as a carrier. 12. The application of the petitioner is being reproduced below:- 1) That I, Govindraj Amutha, w/o Sh.Kosimani was arrested on February 1, 2013 by Custom officials at IGI Airport with 9.720 kgs. Ketamine. 2) That I am married with 2 children all boys. Being a mother I am worried about my children although they are major but since I came inside I have no idea of their whereabouts. Also children of their age are th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present case on my own without any pressure or coercion from any side independently and I am ready to face the punishment and to pay the fine if so imposed upon me. sd/- RO&AC Sd/- (S.C. Rajan) ASJ/Spl.Judge (NDPS) Dwarka/New Delhi 19.9.2014 16. Thereafter the Trial Court, accepting the plea of guilt of the petitioner namely her carrying 9.720 kgs of Ketamine Hydrochloride, convicted her under Sections 22/23 read with Section 28 of the NDPS Act, 1985 and sentenced her to undergo RI for 10 years under both counts, fine of Rs. 1 lakh under each head with the default stipulation. 17. The Trial Court judgment evinces complete non application of mind after such a plea of guilt was made by the petitioner. 18. Section 229 of the Code of Criminal Procedure provides that if an accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon. 19. A plain reading of Section 229 makes it very clear that the Court has a discretion to convict an accused when he/she pleads guilty. The proper exercise of this discretion is of considerable importance especially when the accused is absolutely unaware of the language of the Court or the language in wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e physical act and not advert to the various ingredients constituting the offence. Whether the acts constitute murder is a mixed questions of law and fact. To a common man there is no difference between killing and murder but in law the act of the accused may amount to an offence under Section 302, I.P.C. or 304 Part I, I.P.C. or under Section 304, Part I, I.P.C. and the sentence to be awarded in each case will differ. For deciding the nature of the offence the court should have before it the details of the occurrence, the motive and the circumstances under which the act was, done and for this purpose it is not only desirable but essential that the entire evidence be placed before the court. 9. The principle that in a serious case a finding of conviction should not be recorded on the plea of guilty, was stated a century ago by this court in Queen Empress v. Bhadu ILR(1896) All 120 in the following words: In this country it is dangerous to assume that a prisoner of this class understands what are the ingredients of the offence under Section 302 of the Indian Penal Code, and what are the matters which might reduce the act committed, to an offence under Section 304. Even in England ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in certain cases when accused pleads guilty. Notwithstanding anything contained in section 374, where an accused person has pleaded guilty and has been convicted on such plea, there shall be no appeal,- (a) if the conviction is by a High Court; or (b) if the conviction is by a Court of Session, Metropolitan Magistrate or Magistrate of the first or second class, except as to the extent or legality of the sentence. 24. Normally the plea of guilt would be regarded as a waiver of the right of appeal except as to the severity or the legality of the sentence. In the present case, the plea of guilt of the petitioner is more a statement out of frustration and desperation and not a statement accepting the guilt. A plea of guilt made by an accused under such circumstances namely lack of knowledge and understanding, poverty, desperation, lack of proper advice, unavailability of experienced counsel may not be accepted as a plea of guilt and Section 375 of the Code of Criminal Procedure would not come in the way of preferring an appeal against the judgment and order of conviction. Such an appeal, if so filed ought not only to be heard on the question of sentence. 25. This Court is of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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