201 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of Decision: 20.03.2025 SHAMSHER ...APPELLANT Versus STATE OF HARYANA ...RESPONDENT CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR Present: Mr. H.P.S. Ghuman, Advocate and Mr. Vishesh Jain, Advocate for the appellant.

Mr. Vikas Bhardwaj, AAG Haryana.

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Harpreet Singh Brar, J. (Oral)

1. Present appeal has been preferred by the appellant against the judgment of conviction and order on quantum of sentence dated 12.11.2009/13.11.2009 passed by learned Judge, Special Court, Panipat vide which the appellant has been convicted and sentenced as mentioned below:

2. Briefly stated the facts of the prosecution case are that on

20.05.2008, ASI Sultan Singh was present at Binjhol Bridge Gohana turn, Panipat, whereby accused-appellant after seeing the police party, tried to start his motor cycle. On suspicion, accused-appellant was apprehended and upon asking, he disclosed his name as Shamsher son of Balwant Singh. On suspicion, search of the accused-appellant and his belongings was conducted and fifteen grams of smack was recovered from the polythene bag of the accused. Two sample each weighing 05 grams were separated from the bulk of smack. Separate parcels of the samples as well as remaining bulk of the smack were prepared, which were sealed. FIR(supra) was registered under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as ‘NDPS Act’).

3. Learned Counsel for the petitioner submits that he is not assailing the impugned judgment of conviction dated 12.11.2009 passed by learned Judge, Special Court, Panipat on merits and restricts his prayer to modification of the order on quantum of sentence dated 13.11.2009 to that of sentence already undergone by the appellant as he has already undergone a period of almost 02 months out of total sentence of six months imposed upon him and he is not involved in any other case.

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

5. 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 grams of smack, attracting the offence under Section 21 of 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 01 month and 28 days out of total sentence of six months, in the instant case. Moreover, learned counsel for the appellant has not assailed the judgment of conviction on merits. Rather, he has restricted his prayer only qua modification of order on quantum of sentence. Since there is no minimum punishment prescribed under Section 21 of 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.

6. In Deo Narain Mandal v. State of UP (2004) 7 SCC 257, a three Judge bench of 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 assessing all relevant factors, proper sentence should be award