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 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 thisPage 12
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.”
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
Citation;(2015) 8 SCC39
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,Page 2
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 SubPage 3
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 thePage 4
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 sealPage 5
“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 andPage 6
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 notPage 7
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 respectPage 8
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 ASIPage 9
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 asPage 10
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 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 thisPage 12
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.”Page 13
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 thinkPage 14
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.
Print Page
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 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 thisPage 12
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.”
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
Citation;(2015) 8 SCC39
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,Page 2
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 SubPage 3
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 thePage 4
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 sealPage 5
“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 andPage 6
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 notPage 7
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 respectPage 8
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 ASIPage 9
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 asPage 10
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 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 thisPage 12
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.”Page 13
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 thinkPage 14
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.
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