IMPORTANT POINTS1. The claim for parity with acquitted co-Accused is not applicable in cases where none of the co-accused persons were apprehended at the spot and has not produced any evidence to connect them with the alleged offence.
2. Though Section 20(i) of NDPS Act (as it stood in 1997), not prescribing a minimum mandatory sentence, the Legislature had in its wisdom left it to the judicious discretion of a court to award the minimum sentence based on the well-known principles on the proportionality.

JUDGMENT :

SURYA KANT, J.

1. The appellant Sk. Sakkar @ Mannan assails the judgment dated 09.12.2009 passed by the High Court at Calcutta whereby his appeal against the judgment and order dated 26.05.2004 and 27.05.2004 passed by Special Judge, Birbhum convicting him for offences under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”) and imposing a sentence of five years rigorous imprisonment (RI) and a fine of Rs. 20,000/- (in default, whereof to further undergo RI for one additional year), has been dismissed.

2. The prosecution case in brief is that upon receiving secret information, D.S.P. Headquarter, Birbhum conducted a raid on 16.11.1997 and intercepted an Ambassador car bearing no. BRW-312. Since the car was detained inside a forest area, 3/4 occupants of the car managed to flee, while only 2 of the occupants, including the appellant, were caught and arrested. 11kgs of ganja was seized following the statutory procedure. The suspects were thereafter interrogated, and a formal FIR was registered at Police Station Sadaipur. Charge-sheet was submitted against five persons including the appellant.

3. The appellant and his co-accused, except one Kalachand Saha, were charged under Section 20 of the NDPS Act. Since they pleaded not guilty, trial was conducted, and the charges against them were proved. The Special Judge, Birbhum convicted and sentenced the appellant as noted in paragraph 1 of this order.

4. The appellant assailed his conviction before the High Court, contending, inter-alia, that the prosecution case was suffering from inherent weakness, and that the testimonies of the witnesses were not credible. The plea of absence of independent witnesses, more so when PW-2, PW-3 and PW-8 were declared hostile, was also pressed into service. It was also highlighted that although Kalachand Saha was claimed to have been arrested along with the appellant, he was not even charge-sheeted.

5. The High Court minutely scrutinized the entire evidence and has extensively discussed the depositions made by PW-1, PW-6, PW-7 and PW-9. It then firmly held that about 11 kgs of ganja was recovered from the appellant and Kalachand Saha. As regard to other three co-accused, the High Court opined that since they were not arrested at the spot and were roped in only with the aid of confessional statement of the arrested persons, the case against them was not proved beyond reasonable doubt. The High Court thus acquitted the appellant’s co-accused, but dismissed his appeal upholding the conviction and sentence awarded by the Special Judge.

6. The still aggrieved appellant approached this Court through Special Leave to Appeal, in which leave was granted on 27.08.2010. Thereafter, having regards to the fact that the appellant had already undergone actual sentence for a period of 2 years 4 months and 16 days, out of the total sentence of RI for five years, this Court vide order dated 02.11.2012 suspended the sentence and released the appellant on bail.

7. We have heard learned counsel for the parties at considerable length and perused the record. In sum and substance, it is urged on behalf of the appellant that the courts below have not correctly appreciated the statements of the witnesses or the evidence comprising seizure memo etc. It is also argued that PW-2, PW-3 and PW-8 having been declared hostile, the remaining ocular evidence falls short of proving the appellant’s guilt beyond reasonable doubt.

8. We are, however, not impressed by these contentions. What has been sought to be argued is essentially either a question of fact or an abortive attempt for re-appreciation of evidence on record. Such discourse ordinarily does not fall within the scope and ambit of powers vested in this Court under Article 136 of the Constitution. [Surendra Puri vs. State of Uttarakhand, (2016) 13 SCC 274, Mangu Khan and Others vs. State of Rajasthan, (2005) 10 SCC 374 and Pritam Singh vs. State, AIR 1950 SC 169]. The appellant’s claim for pari