203 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 01.04.2025 Vijay Kumar ....Appellant Versus State of Punjab ...Respondent CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR Present: Ms. Urvashi Singh, Legal Aid Counsel for the appellant.

Mr. Sandeep Kumar, DAG, Punjab.

HARPREET SINGH BRAR, J. (ORAL)

1. The prayer in the present appeal is to set aside the judgment of conviction and order of sentence dated 11.12.2009 passed by learned Judge, Special Court, Mansa, whereby, the appellant was convicted and sentenced for the offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter ‘NDPS Act’), in the case stemming from FIR No.179 dated 18.08.2007, under Section 15 of the NDPS Act at Police Station City Mansa.

2. The appellant was sentenced as mentioned below:

3. Brief facts of the case are that on 18.08.2007, a police party headed by ASI Major Singh was on patrolling duty at Canal minor bridge Jawaharke near Petrol Pump where, Tari Singh met the police party and was associated with it. Thereafter, when the police party was going from the side of Village Jawaharke towards Ramdittewala via metalled road and reached at canal minor bridge near Nehri Kothi, the appellant was apprehended with 15 Kg of Poppy Husk and sample of 100 grams was drawn from the bag and the same was then sent to the chemical examiner. Subsequently, FIR (supra) was registered under Section 15 of the NDPS Act.

4. Learned legal aid counsel for the appellant inter alia contends that the mandatory provisions of the NDPS Act have not been followed and also the link evidence is missing in the present case. Further, there are improvements and contradictions in the statements of the prosecution witnesses which creates serious doubt in the case set up by the prosecution. No independent witness was joined in the investigation and the Investigating Officer is the complainant in the present case. Lastly, he submits that the appellant has already undergone a period of 05 months and 08 days in custody and is not involved in any other criminal case.

5. Per contra, learned State counsel opposes the prayer of the appellant as the learned Court below has passed a well-reasoned judgment based on correct appreciation of evidence available on record as such, he does not deserve any leniency.

6. Having heard learned counsel for the parties and after perusing the record with their able assistance, it transpires that the appellant was convicted for being in possession of 15 kg of Poppy Husk, i.e. intermediate quantity, attracting the offence of Section 15 of the NDPS Act, for which no minimum punishment has been prescribed. As per his custody certificate, he is not involved in any other case and has already undergone an actual sentence of 05 months and 08 days out of total sentence of 09 months, in the instant case.

Since there is no minimum punishment prescribed under Section 15 of the NDPS Act, this Court is of the opinion that it would be in the interest of justice, if the sentence awarded to the appellant is reduced to the period already undergone by him.

7. In Deo Narain Mandal vs. State of U.P. (2004) 7 SCC 257, the Hon'ble Supreme Court has opined that awarding of sentence is not a mere formality in criminal cases. When a minimum and maximum term is prescribed by the statute with regard to the period of sentence, a discretionary element is vested in the Court. Background of each case, which includes factors like gravity of the offence, manner in which the offence is committed, age of the accused, should be considered while determining the quantum of sentence and this discretion is not to be used arbitrarily or whimsically. After as