REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1953 OF 2009
STATE OF HARYANA … Appellant
:Versus:
ASHA DEVI AND ANR. … Respondents
J U D G M E N T
Pinaki Chandra Ghose, J.
1. This appeal has been filed by the State of Haryana against the
judgment and order dated 10.12.2007 of the High Court of Punjab and Haryana
at Chandigarh in Criminal Misc. No.560-MA of 2007, whereby the High Court
has declined to grant leave to the State to appeal against the acquittal of
the respondents.
2. The facts of this case, as per the prosecution story, are that on
3.2.2006, when Sub Inspector Ram Phal, ASI Rishi Raj, Constable Surender
Singh, Lady Constables Babita Rani and Promila, were on patrol duty in a
police vehicle which was being driven by Constable Darshan Singh, near
Chimni Bai Dharamshala, NIT No.3, SI Ram Phal received a secret information
that Om Prakash son of Moti Lal, and his wife Asha Devi, residents of Gali
No.1, Jhuggi Kalyanpuri, bring Ganja (intoxicated drug) from Madhya Pradesh
and supply in Faridabad and if a raid is conducted at their house, Ganja in
heavy quantity would be recovered. On receiving this information, the
aforesaid police team raided the house of Om Prakash. On seeing the police
party, Om Prakash managed to escape by scaling over the wall of the house.
Asha Devi also tried to escape but she was apprehended with the help of
Lady Constables. On query she disclosed her name as Asha wife of Om Prakash
and also disclosed that the man who had escaped from the house was Om
Prakash. A notice in writing under Section 50 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (“NDPS Act”, for short) was served on her
informing her of the right to either allow the Sub Inspector to take search
of her house or opt for the search in presence of some Gazetted Officer or
a Magistrate. Asha Devi consented for search of her house in the presence
of some Gazetted Officer. Accordingly, Shri Maharaj Singh, the then Deputy
Superintendent of Police, NIT, Faridabad, reached the spot and in his
presence the house of Asha Devi was searched. Asha Devi unpacked a box,
took out a bag containing Ganja and produced it before the Sub Inspector.
The bag was weighed and found to be contained 11 Kgs. of Ganja out of which
two samples of 200 gms. each were taken and sealed with letters “RP” and
“MS” on the seal. Both the samples along with the residue and the specimen
seal impressions were taken into possession by the police under the
recovery memo which was prepared by I.O. Ramphal and witnessed by ASI Tej
Ram and ASI Rishiraj and attested by DSP Maharaj Singh and thumb mark of
Asha Devi. The case property along with the samples and the witnesses were
produced before the Station House Officer, who after verifying the facts
affixed his seal thereon and were deposited in the Moharrer Police
Malkhana. A case was registered against accused Asha Devi under Section
20(61) of the NDPS Act and she was arrested. Thereafter, on 04.02.2006 case
property and both samples were produced before the learned Judicial
Magistrate, 1st Class, Faridabad. The learned judicial Magistrate broke the
seals on the case property as well one of the samples. The learned Judicial
Magistrate verified the material, photographs were taken and contraband was
weighed; thereafter the sample was resealed with the seal of RP. The
Judicial Magistrate directed the Investigation Officer to deposit the
material to Judicial Malkhana. After investigation, accused Asha Devi was
charged under Section 20 of the NDPS Act and accused Om Prakash was charged
under Sections 28 & 29 of the NDPS Act. The accused pleaded not guilty and
hence the case was committed for trial.
3. The Trial Court examined ten prosecution witnesses and two defence
witnesses. After going through the prosecution evidence and after hearing
the learned counsel for the parties, the Trial Court did not find favour
with the prosecution version as according to it, on receiving the secret
information, Sub Inspector did not join any independent witness during the
investigation of the case despite the fact that they were available at the
spot. It further found that the seal “RP” was entrusted to ASI Rishiraj
after sealing the case property and samples on 3.2.2006; so, I.O. Ramphal
could not have possessed that seal the next day when the case property was
produced before the learned judicial magistrate. However, the learned
judicial magistrate has testified to the fact that sample was resealed
after verification, photograph and weighment with the seal of “RP”. The
learned Trial Court found it irreconcilable that seal “RP” could have been
available with the learned Judicial Magistrate when ASI Rishiraj is not
there. Further, the Trial Court found non production of ASI Rishiraj as
prosecution witness creates more suspicion. Also, ASI Tej Raj (PW-2) had
chased the accused Om Prakash when he was trying to run away but he was
unable to apprehend him. This part of the story was also not believed by
the Trial Court for the reason that five constables were standing outside
the house of Om Prakash and it was not possible for Om Prakash to have
scaled the wall of the house. The Trial Court found the evidence of the
prosecution as completely inconsistent and untrustworthy and held that the
prosecution has failed to prove its charges against the accused beyond all
shadows of reasonable doubt and accordingly, acquitted the accused of the
charges levelled against them.
4. The State moved an application before the High Court of Punjab and
Haryana at Chandigarh, seeking leave to appeal against the order of
acquittal passed by the Trial Court. The High Court vide its judgment and
order dated 10.12.2007, declined to grant leave to the State to appeal
against the acquittal of the respondents and dismissed the application
filed by the State. The State of Haryana has, thus, impugned the judgment
of the High Court before us.
5. We have heard the learned counsel appearing for the State of Haryana
as also the learned counsel appearing for the accused respondents.
6. The High Court was of the view that the Trial Court after going
through the prosecution evidence and hearing the learned counsel for the
parties, rightly acquitted the accused as it did not find favour with the
prosecution version and so far as the search conducted in the presence of
the Gazetted Officer is concerned, the same was nothing but a casual
approach adopted by the Gazetted Officer while effecting the recovery of
the contraband (Ganja) and the Investigation Officer did not offer any
plausible explanation. ASI Rishi Raj was present with the seal which was
used at the time of effecting the recovery, no explanation was offered by
the prosecution as to how the seal continued to remain in possession of the
ASI Rishi Raj from the date of seizure. The only presumption which the
Trial Court drew is that the possibility of sample being tampered with is
not ruled out. The High Court was of the view that it is not a fit case
where leave to appeal is made out in favour of the State of Haryana and,
therefore, declined the same.
7. We find that the High Court and Trial Court both relied on three main
points to decide the matter against the State - (i) no independent witness;
(ii) Om Prakash could not have fled in presence of five police officers;
and (iii) the link evidence of the possession of seal “RP” transferring
from ASI Rishiraj to I.O. Ramphal is not proved. The assessment of evidence
and consideration of the matter as regards these three points by both the
Courts, in our view, is erroneous and cannot be termed as a possible view.
8. We find that both the DSP Maharaj Singh as well as I.O. Ramphal have
deposed that public persons were available when the contraband was seized;
however, none of the public person acceded to their request of joining the
investigation as an independent witness. The Courts below have found it
unbelievable but no reason for same is rendered. In our opinion, the
consistent statement of both the DSP as well as I.O. rather enhances the
veracity of the circumstances as put forth by them. With respect to the
finding of the Courts below that Om Prakash could not have fled away after
scaling the wall and the police constables would have failed to catch hold
of him; we find the Courts below have proceeded on assumption and
conjecture. There is nothing in the evidence which could show that Om
Prakash could not have run away. There are positive statements by several
prosecution witnesses that he ran away on seeing the police party and these
statements have withstood the test of cross examination as well. Further,
no other evidence was led to disprove the fact of running away of accused
Om Prakash. So, we are of the view that the High Court and the Trial Court
were not correct in arriving at the said finding.
9. There has been a controversy with respect to possession of seal. The
controversy is that I.O. Ramphal had given the seal “RP” to ASI Rishiraj on
03.02.2006 after sealing the contraband and samples thereof. However, the
next day when the case property was produced before the learned Judicial
Magistrate, after verification it was resealed again with “RP”. The Courts
below found the case of prosecution as doubtful inasmuch as that when the
seal “RP” was in possession of ASI Rishiraj, how could it have been with
I.O. Ramphal the next day. We find, the more important evidence was with
respect to the sample which was sealed with “RP”. There is clear evidence
that initially the samples were taken and sealed with “RP” and “MS” on
03.02.2006 at the place of seizure and thereafter, on same day, SHO Vikram
Singh also sealed the said samples with “SS”. There is uncontroverted
evidence to the fact that the samples were produced before the learned
Judicial Magistrate, where seal of one sample was broken and resealed with
“RP”. Thereafter, the sample was deposited in Judicial Malkhana from where
it was sent to the FSL. The FSL report notes that the seal was intact and
the sample was un-tampered.
10. All the persons who possessed the contraband sample have been brought
on record to support that no tampering was done with the samples. The
Defence failed to bring out anything in the cross-examination of the
witnesses with respect to tampering of the samples. Thus, we find that the
samples were properly dealt with throughout and the same was found to be
Ganja. Going further, with respect to the seal that was handed over to ASI
Rishiraj, the Defence failed to cross-examine the I.O. Ramphal as to how
did he got possession of seal back from ASI Rishiraj. Under these
circumstances, we do not believe that the prosecution was duty bound to
explain the movement of the seal from one person to another in the given
circumstances. Since, the movement of sample has been proved and found to
be regular, the prosecution has sufficiently proved its case to establish
the guilt of the accused in the present case.
11. We have noticed the decision of this Court in Allauddin Mian & Ors.
Vs. State of Bihar, (1989) 3 SCC 5. In the said decision, this Court held
as under:-
“10. Even a casual glance at the provisions of the Penal Code will show
that the punishments have been carefully graded corresponding with the
gravity of offences; in grave wrongs the punishments prescribed are strict
whereas for minor offences leniency is shown. Here again there is
considerable room for manoeuvre because the choice of the punishment is
left to the discretion of the judge with only the outer limits stated.
There are only a few cases where a minimum punishment is prescribed. The
question then is what procedure does the judge follow for determining the
punishment to be imposed in each case to fit the crime? The choice has to
be made after following the procedure set out in sub-section (2) of Section
235 of the Code. That sub-section reads as under:
If the accused is convicted, the judge shall, unless he proceeds in
accordance with the provisions of Section 360, hear the accused on the
question of sentence, and then pass sentence on him according to law.
The requirement of hearing the accused is intended to satisfy the rule of
natural justice. It is a fundamental requirement of fair play that the
accused who was hitherto concentrating on the prosecution evidence on the
question of guilt should, on being found guilty, be asked if he has
anything to say or any evidence to tender on the question of sentence. This
is all the more necessary since the courts are generally required to make
the choice from a wide range of discretion in the matter of sentencing. To
assist the court in determining the correct sentence to be imposed the
legislature introduced sub-section (2) to Section 235. The said provision
therefore satisfies a dual purpose; it satisfies the rule of natural
justice by according to the accused an opportunity of being heard on the
question of sentence and at the same time helps the court to choose the
sentence to be awarded. Since the provision is intended to give the accused
an opportunity to place before the court all the relevant material having a
bearing on the question of sentence there can be no doubt that the
provision is salutary and must be strictly followed. It is clearly
mandatory and should not be treated as a mere formality. Mr Garg was,
therefore, justified in making a grievance that the trial court actually
treated it as a mere formality as is evident from the fact that it recorded
the finding of guilt [pic]on 31-3-1987, on the same day before the accused
could absorb and overcome the shock of conviction they were asked if they
had anything to say on the question of sentence and immediately thereafter
the decision imposing the death penalty on the two accused was pronounced.
In a case of life or death as stated earlier, the presiding officer must
show a high decree of concern for the statutory right of the accused and
should not treat it as a mere formality to be crossed before making the
choice of sentence. If the choice is made, as in this case, without giving
the accused an effective and real opportunity to place his antecedents,
social and economic background, mitigating and extenuating circumstances,
etc., before the court, the court’s decision on the sentence would be
vulnerable. We need hardly mention that in many cases a sentencing decision
has far more serious consequences on the offender and his family members
than in the case of a purely administrative decision; a fortiori,
therefore, the principle of fair play must apply with greater vigour in the
case of the former than the latter. An administrative decision having civil
consequences, if taken without giving a hearing is generally struck down as
violative of the rule of natural justice. Likewise a sentencing decision
taken without following the requirements of sub-section (2) of Section 235
of the Code in letter and spirit would also meet a similar fate and may
have to be replaced by an appropriate order. The sentencing court must
approach the question seriously and must endeavour to see that all the
relevant facts and circumstances bearing on the question of sentence are
brought on record. Only after giving due weight to the mitigating as well
as the aggravating circumstances placed before it, it must pronounce the
sentence. We think as a general rule the trial courts should after
recording the conviction adjourn the matter to a future date and call upon
both the prosecution as well as the defence to place the relevant material
bearing on the question of sentence before it and thereafter pronounce the
sentence to be imposed on the offender. In the present case, as pointed out
earlier, we are afraid that the learned trial Judge did not attach
sufficient importance to the mandatory requirement of sub-section (2) of
Section 235 of the Code. The High Court also had before it only the scanty
material placed before the learned Sessions Judge when it confirmed the
death penalty.”
12. Thus, we find the accused respondents guilty under Section 20 of NDPS
Act for possession of 11 Kgs. Ganja. The commercial quantity of Ganja is 20
Kgs. or more, and the accused are in possession of small quantity as per
the Notification of the Central Government providing small and commercial
quantities of various contrabands. In view of this, we convict the accused
persons (Asha Devi and her husband Om Prakash) under Section 20 of the NDPS
Act and sentence them to simple imprisonment for five years.
13. Before sentencing, following the principle laid down in Allauddin
Mian (supra), this matter was adjourned, giving a chance to the
respondents/accused to place facts before us and further directed the
appellant to find out about the conduct of the respondents after this
incident and to inform this Court. On the adjourned date, the learned
counsel for the appellant and learned counsel for the respondents/accused
expressed that the respondents thereafter were not found to be implicated
in any other matter. After hearing the learned counsel for the parties and
after giving due weight to the mitigating as well as the aggravating
circumstances placed before us, we think that it would be proper for us to
convict the accused persons with the sentence passed by us, which would
serve the purpose.
14. Accordingly, we set aside the judgment and order passed by the High
Court as also by the Trial Court and direct that the accused/respondents
shall be taken into custody forthwith to undergo the sentence. The appeal
is accordingly allowed.
….....….……………………J
(Pinaki Chandra Ghose)
….....…..…………………..J
(Uday Umesh Lalit)
New Delhi;
May 12, 2015.
ITEM NO.1B COURT NO.11 SECTION IIB
(For judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 1953/2009
STATE OF HARYANA Appellant(s)
VERSUS
ASHA DEVI & ANR. Respondent(s)
Date : 12/05/2015 This appeal was called on for pronouncement of
judgment today.
For Appellant(s) Mr. Rakesh K. Mudgal, AAG
Mr. Dinesh Mudgal, Adv.
For Mr. Sanjay Kumar Visen, AOR
For Respondent(s) Mr. Ravi Kumar Tomar, AOR
Hon'ble Mr. Justice Pinaki Chandra Ghose pronounced the reportable
judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice Uday
Umesh Lalit.
The appeal is allowed in terms of the signed reportable judgment as
follows:
“Accordingly, we set aside the judgment and order passed by the High
Court as also by the Trial Court and direct that the accused/respondents
shall be taken into custody forthwith to undergo the sentence. The
appeal is accordingly allowed.”
(R.NATARAJAN) (SNEH LATA SHARMA)
Court Master Court Master
(Signed reportable judgment is placed on the file)
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1953 OF 2009
STATE OF HARYANA … Appellant
:Versus:
ASHA DEVI AND ANR. … Respondents
J U D G M E N T
Pinaki Chandra Ghose, J.
1. This appeal has been filed by the State of Haryana against the
judgment and order dated 10.12.2007 of the High Court of Punjab and Haryana
at Chandigarh in Criminal Misc. No.560-MA of 2007, whereby the High Court
has declined to grant leave to the State to appeal against the acquittal of
the respondents.
2. The facts of this case, as per the prosecution story, are that on
3.2.2006, when Sub Inspector Ram Phal, ASI Rishi Raj, Constable Surender
Singh, Lady Constables Babita Rani and Promila, were on patrol duty in a
police vehicle which was being driven by Constable Darshan Singh, near
Chimni Bai Dharamshala, NIT No.3, SI Ram Phal received a secret information
that Om Prakash son of Moti Lal, and his wife Asha Devi, residents of Gali
No.1, Jhuggi Kalyanpuri, bring Ganja (intoxicated drug) from Madhya Pradesh
and supply in Faridabad and if a raid is conducted at their house, Ganja in
heavy quantity would be recovered. On receiving this information, the
aforesaid police team raided the house of Om Prakash. On seeing the police
party, Om Prakash managed to escape by scaling over the wall of the house.
Asha Devi also tried to escape but she was apprehended with the help of
Lady Constables. On query she disclosed her name as Asha wife of Om Prakash
and also disclosed that the man who had escaped from the house was Om
Prakash. A notice in writing under Section 50 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (“NDPS Act”, for short) was served on her
informing her of the right to either allow the Sub Inspector to take search
of her house or opt for the search in presence of some Gazetted Officer or
a Magistrate. Asha Devi consented for search of her house in the presence
of some Gazetted Officer. Accordingly, Shri Maharaj Singh, the then Deputy
Superintendent of Police, NIT, Faridabad, reached the spot and in his
presence the house of Asha Devi was searched. Asha Devi unpacked a box,
took out a bag containing Ganja and produced it before the Sub Inspector.
The bag was weighed and found to be contained 11 Kgs. of Ganja out of which
two samples of 200 gms. each were taken and sealed with letters “RP” and
“MS” on the seal. Both the samples along with the residue and the specimen
seal impressions were taken into possession by the police under the
recovery memo which was prepared by I.O. Ramphal and witnessed by ASI Tej
Ram and ASI Rishiraj and attested by DSP Maharaj Singh and thumb mark of
Asha Devi. The case property along with the samples and the witnesses were
produced before the Station House Officer, who after verifying the facts
affixed his seal thereon and were deposited in the Moharrer Police
Malkhana. A case was registered against accused Asha Devi under Section
20(61) of the NDPS Act and she was arrested. Thereafter, on 04.02.2006 case
property and both samples were produced before the learned Judicial
Magistrate, 1st Class, Faridabad. The learned judicial Magistrate broke the
seals on the case property as well one of the samples. The learned Judicial
Magistrate verified the material, photographs were taken and contraband was
weighed; thereafter the sample was resealed with the seal of RP. The
Judicial Magistrate directed the Investigation Officer to deposit the
material to Judicial Malkhana. After investigation, accused Asha Devi was
charged under Section 20 of the NDPS Act and accused Om Prakash was charged
under Sections 28 & 29 of the NDPS Act. The accused pleaded not guilty and
hence the case was committed for trial.
3. The Trial Court examined ten prosecution witnesses and two defence
witnesses. After going through the prosecution evidence and after hearing
the learned counsel for the parties, the Trial Court did not find favour
with the prosecution version as according to it, on receiving the secret
information, Sub Inspector did not join any independent witness during the
investigation of the case despite the fact that they were available at the
spot. It further found that the seal “RP” was entrusted to ASI Rishiraj
after sealing the case property and samples on 3.2.2006; so, I.O. Ramphal
could not have possessed that seal the next day when the case property was
produced before the learned judicial magistrate. However, the learned
judicial magistrate has testified to the fact that sample was resealed
after verification, photograph and weighment with the seal of “RP”. The
learned Trial Court found it irreconcilable that seal “RP” could have been
available with the learned Judicial Magistrate when ASI Rishiraj is not
there. Further, the Trial Court found non production of ASI Rishiraj as
prosecution witness creates more suspicion. Also, ASI Tej Raj (PW-2) had
chased the accused Om Prakash when he was trying to run away but he was
unable to apprehend him. This part of the story was also not believed by
the Trial Court for the reason that five constables were standing outside
the house of Om Prakash and it was not possible for Om Prakash to have
scaled the wall of the house. The Trial Court found the evidence of the
prosecution as completely inconsistent and untrustworthy and held that the
prosecution has failed to prove its charges against the accused beyond all
shadows of reasonable doubt and accordingly, acquitted the accused of the
charges levelled against them.
4. The State moved an application before the High Court of Punjab and
Haryana at Chandigarh, seeking leave to appeal against the order of
acquittal passed by the Trial Court. The High Court vide its judgment and
order dated 10.12.2007, declined to grant leave to the State to appeal
against the acquittal of the respondents and dismissed the application
filed by the State. The State of Haryana has, thus, impugned the judgment
of the High Court before us.
5. We have heard the learned counsel appearing for the State of Haryana
as also the learned counsel appearing for the accused respondents.
6. The High Court was of the view that the Trial Court after going
through the prosecution evidence and hearing the learned counsel for the
parties, rightly acquitted the accused as it did not find favour with the
prosecution version and so far as the search conducted in the presence of
the Gazetted Officer is concerned, the same was nothing but a casual
approach adopted by the Gazetted Officer while effecting the recovery of
the contraband (Ganja) and the Investigation Officer did not offer any
plausible explanation. ASI Rishi Raj was present with the seal which was
used at the time of effecting the recovery, no explanation was offered by
the prosecution as to how the seal continued to remain in possession of the
ASI Rishi Raj from the date of seizure. The only presumption which the
Trial Court drew is that the possibility of sample being tampered with is
not ruled out. The High Court was of the view that it is not a fit case
where leave to appeal is made out in favour of the State of Haryana and,
therefore, declined the same.
7. We find that the High Court and Trial Court both relied on three main
points to decide the matter against the State - (i) no independent witness;
(ii) Om Prakash could not have fled in presence of five police officers;
and (iii) the link evidence of the possession of seal “RP” transferring
from ASI Rishiraj to I.O. Ramphal is not proved. The assessment of evidence
and consideration of the matter as regards these three points by both the
Courts, in our view, is erroneous and cannot be termed as a possible view.
8. We find that both the DSP Maharaj Singh as well as I.O. Ramphal have
deposed that public persons were available when the contraband was seized;
however, none of the public person acceded to their request of joining the
investigation as an independent witness. The Courts below have found it
unbelievable but no reason for same is rendered. In our opinion, the
consistent statement of both the DSP as well as I.O. rather enhances the
veracity of the circumstances as put forth by them. With respect to the
finding of the Courts below that Om Prakash could not have fled away after
scaling the wall and the police constables would have failed to catch hold
of him; we find the Courts below have proceeded on assumption and
conjecture. There is nothing in the evidence which could show that Om
Prakash could not have run away. There are positive statements by several
prosecution witnesses that he ran away on seeing the police party and these
statements have withstood the test of cross examination as well. Further,
no other evidence was led to disprove the fact of running away of accused
Om Prakash. So, we are of the view that the High Court and the Trial Court
were not correct in arriving at the said finding.
9. There has been a controversy with respect to possession of seal. The
controversy is that I.O. Ramphal had given the seal “RP” to ASI Rishiraj on
03.02.2006 after sealing the contraband and samples thereof. However, the
next day when the case property was produced before the learned Judicial
Magistrate, after verification it was resealed again with “RP”. The Courts
below found the case of prosecution as doubtful inasmuch as that when the
seal “RP” was in possession of ASI Rishiraj, how could it have been with
I.O. Ramphal the next day. We find, the more important evidence was with
respect to the sample which was sealed with “RP”. There is clear evidence
that initially the samples were taken and sealed with “RP” and “MS” on
03.02.2006 at the place of seizure and thereafter, on same day, SHO Vikram
Singh also sealed the said samples with “SS”. There is uncontroverted
evidence to the fact that the samples were produced before the learned
Judicial Magistrate, where seal of one sample was broken and resealed with
“RP”. Thereafter, the sample was deposited in Judicial Malkhana from where
it was sent to the FSL. The FSL report notes that the seal was intact and
the sample was un-tampered.
10. All the persons who possessed the contraband sample have been brought
on record to support that no tampering was done with the samples. The
Defence failed to bring out anything in the cross-examination of the
witnesses with respect to tampering of the samples. Thus, we find that the
samples were properly dealt with throughout and the same was found to be
Ganja. Going further, with respect to the seal that was handed over to ASI
Rishiraj, the Defence failed to cross-examine the I.O. Ramphal as to how
did he got possession of seal back from ASI Rishiraj. Under these
circumstances, we do not believe that the prosecution was duty bound to
explain the movement of the seal from one person to another in the given
circumstances. Since, the movement of sample has been proved and found to
be regular, the prosecution has sufficiently proved its case to establish
the guilt of the accused in the present case.
11. We have noticed the decision of this Court in Allauddin Mian & Ors.
Vs. State of Bihar, (1989) 3 SCC 5. In the said decision, this Court held
as under:-
“10. Even a casual glance at the provisions of the Penal Code will show
that the punishments have been carefully graded corresponding with the
gravity of offences; in grave wrongs the punishments prescribed are strict
whereas for minor offences leniency is shown. Here again there is
considerable room for manoeuvre because the choice of the punishment is
left to the discretion of the judge with only the outer limits stated.
There are only a few cases where a minimum punishment is prescribed. The
question then is what procedure does the judge follow for determining the
punishment to be imposed in each case to fit the crime? The choice has to
be made after following the procedure set out in sub-section (2) of Section
235 of the Code. That sub-section reads as under:
If the accused is convicted, the judge shall, unless he proceeds in
accordance with the provisions of Section 360, hear the accused on the
question of sentence, and then pass sentence on him according to law.
The requirement of hearing the accused is intended to satisfy the rule of
natural justice. It is a fundamental requirement of fair play that the
accused who was hitherto concentrating on the prosecution evidence on the
question of guilt should, on being found guilty, be asked if he has
anything to say or any evidence to tender on the question of sentence. This
is all the more necessary since the courts are generally required to make
the choice from a wide range of discretion in the matter of sentencing. To
assist the court in determining the correct sentence to be imposed the
legislature introduced sub-section (2) to Section 235. The said provision
therefore satisfies a dual purpose; it satisfies the rule of natural
justice by according to the accused an opportunity of being heard on the
question of sentence and at the same time helps the court to choose the
sentence to be awarded. Since the provision is intended to give the accused
an opportunity to place before the court all the relevant material having a
bearing on the question of sentence there can be no doubt that the
provision is salutary and must be strictly followed. It is clearly
mandatory and should not be treated as a mere formality. Mr Garg was,
therefore, justified in making a grievance that the trial court actually
treated it as a mere formality as is evident from the fact that it recorded
the finding of guilt [pic]on 31-3-1987, on the same day before the accused
could absorb and overcome the shock of conviction they were asked if they
had anything to say on the question of sentence and immediately thereafter
the decision imposing the death penalty on the two accused was pronounced.
In a case of life or death as stated earlier, the presiding officer must
show a high decree of concern for the statutory right of the accused and
should not treat it as a mere formality to be crossed before making the
choice of sentence. If the choice is made, as in this case, without giving
the accused an effective and real opportunity to place his antecedents,
social and economic background, mitigating and extenuating circumstances,
etc., before the court, the court’s decision on the sentence would be
vulnerable. We need hardly mention that in many cases a sentencing decision
has far more serious consequences on the offender and his family members
than in the case of a purely administrative decision; a fortiori,
therefore, the principle of fair play must apply with greater vigour in the
case of the former than the latter. An administrative decision having civil
consequences, if taken without giving a hearing is generally struck down as
violative of the rule of natural justice. Likewise a sentencing decision
taken without following the requirements of sub-section (2) of Section 235
of the Code in letter and spirit would also meet a similar fate and may
have to be replaced by an appropriate order. The sentencing court must
approach the question seriously and must endeavour to see that all the
relevant facts and circumstances bearing on the question of sentence are
brought on record. Only after giving due weight to the mitigating as well
as the aggravating circumstances placed before it, it must pronounce the
sentence. We think as a general rule the trial courts should after
recording the conviction adjourn the matter to a future date and call upon
both the prosecution as well as the defence to place the relevant material
bearing on the question of sentence before it and thereafter pronounce the
sentence to be imposed on the offender. In the present case, as pointed out
earlier, we are afraid that the learned trial Judge did not attach
sufficient importance to the mandatory requirement of sub-section (2) of
Section 235 of the Code. The High Court also had before it only the scanty
material placed before the learned Sessions Judge when it confirmed the
death penalty.”
12. Thus, we find the accused respondents guilty under Section 20 of NDPS
Act for possession of 11 Kgs. Ganja. The commercial quantity of Ganja is 20
Kgs. or more, and the accused are in possession of small quantity as per
the Notification of the Central Government providing small and commercial
quantities of various contrabands. In view of this, we convict the accused
persons (Asha Devi and her husband Om Prakash) under Section 20 of the NDPS
Act and sentence them to simple imprisonment for five years.
13. Before sentencing, following the principle laid down in Allauddin
Mian (supra), this matter was adjourned, giving a chance to the
respondents/accused to place facts before us and further directed the
appellant to find out about the conduct of the respondents after this
incident and to inform this Court. On the adjourned date, the learned
counsel for the appellant and learned counsel for the respondents/accused
expressed that the respondents thereafter were not found to be implicated
in any other matter. After hearing the learned counsel for the parties and
after giving due weight to the mitigating as well as the aggravating
circumstances placed before us, we think that it would be proper for us to
convict the accused persons with the sentence passed by us, which would
serve the purpose.
14. Accordingly, we set aside the judgment and order passed by the High
Court as also by the Trial Court and direct that the accused/respondents
shall be taken into custody forthwith to undergo the sentence. The appeal
is accordingly allowed.
….....….……………………J
(Pinaki Chandra Ghose)
….....…..…………………..J
(Uday Umesh Lalit)
New Delhi;
May 12, 2015.
ITEM NO.1B COURT NO.11 SECTION IIB
(For judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 1953/2009
STATE OF HARYANA Appellant(s)
VERSUS
ASHA DEVI & ANR. Respondent(s)
Date : 12/05/2015 This appeal was called on for pronouncement of
judgment today.
For Appellant(s) Mr. Rakesh K. Mudgal, AAG
Mr. Dinesh Mudgal, Adv.
For Mr. Sanjay Kumar Visen, AOR
For Respondent(s) Mr. Ravi Kumar Tomar, AOR
Hon'ble Mr. Justice Pinaki Chandra Ghose pronounced the reportable
judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice Uday
Umesh Lalit.
The appeal is allowed in terms of the signed reportable judgment as
follows:
“Accordingly, we set aside the judgment and order passed by the High
Court as also by the Trial Court and direct that the accused/respondents
shall be taken into custody forthwith to undergo the sentence. The
appeal is accordingly allowed.”
(R.NATARAJAN) (SNEH LATA SHARMA)
Court Master Court Master
(Signed reportable judgment is placed on the file)
