IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

382 CRA-S-2072-SB-2006 (O&M)

Date of decision: 19.05.2025 Tara Singh ....Appellant Versus State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR Present: Mr. Shivam Kapila, Advocate (Amicus Curiae for the appellant.

Mr. Rishabh Singla, AAG, Punjab.

HARPREET SINGH BRAR J. (Oral)

1. The prayer in the present appeal is to set-aside the judgment of conviction dated 05.10.2006 and order of sentence dated 09.10.2006 passed by learned Special Judge, Moga whereby the appellant was convicted and sentenced for the offence punishable under Section 15(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter ‘the NDPS Act’), in the case stemming from FIR No.43 dated 16.04.2003 registered under Section 15 of the NDPS Act at Police Station Kot Ise Khan, District Moga.

2. The appellant was found in possession 28.50 Kgs of Poppy Straw, for which he was convicted and sentenced as follows:

3. Learned amicus curiae, inter alia, contends that the mandatory as well as directory provisions contained in the NDPS Act, have not been followed, which would vitiate the entire case of the prosecution. Further one independent witness namely Baru Ram was joined in the investigation, however, he was not produced before the learned Court below at the time of trial rendering the entire case of the prosecution doubtful. Moreover, there is an unexplained delay in sending the representative sample to the office of Forensic Science Laboratory and there are major contradictions and infirmities in the case set up by the prosecution. Lastly, the appellant has already undergone a period of 04 months and 12 days in custody.

4. Per contra, learned State counsel opposes the prayer of the appellant on the ground that the learned Court below has passed a well- reasoned judgment based on correct appreciation of evidence available on record and the appellant is involved in one more case, as such, he 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 28.50 Kgs of Poppy Straw, i.e. intermediate quantity, attracting the offence of Section 15(b) of the NDPS Act, for which no minimum punishment has been prescribed. As per custody certificate, the appellant has already undergone an actual sentence of 04 months and 12 days out of total sentence of 04 years, in the instant case. Since there is no minimum punishment prescribed under Section 15(b) 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.

6. In Deo Narain Mandal Vs. 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, the 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 awarded bearing in mind the principle of proportionality to ensure the sentence is neither excessively harsh nor does it come across as lenient.

7. Further, a two-Judge Bench of the Hon'ble Supreme Court in Ravada Sasikala Vs. State of AP, AIR 2017 SC 1166, has reiterated that the impositio