Budhiyarin Bai vs The State Of Chhattisgarh

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S).1218 OF 2022 (Arising out of SLP(Criminal) No(s). 4935 of 2022)

BUDHIYARIN BAI ….APPELLANT(S)

VERSUS

STATE OF CHATTISGARH ….RESPONDENT(S)

JUDGMENT

Rastogi, J.

1. Leave granted.

2. The instant appeal is directed against the judgment and order

dated 26th February, 2018 upholding conviction of the appellant for

the offence under Section 20(b)(ii)(C) of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (hereinafter being referred to as

the “NDPS Act”) and sentenced to 15 years’ rigorous imprisonment Signature Not Verified

and a fine of Rs.One Lakh, in default to pay fine, a sentence of Digitally signed by Rajni Mukhi Date: 2022.08.10 17:37:55 IST Reason: 1 rigorous imprisonment for a period of 3 years to be undergone

separately.

3. The notice was issued by this Court by an Order dated 13 th

May, 2022 limited to the quantum of sentence.

4. The facts of the case relevant for the purpose are that the

appellant is a poor illiterate lady and a senior citizen at the time of

the alleged incident, i.e., 15th January, 2011, who, along with her

two children, Pila Ram and Rajkumar alias Raju was charged under

Section 20(b)(ii)(C) of the NDPS Act for having joint possession of

the commercial quantity of illegal ‘Ganja’(Cannabis) of 05 quintal

and 21.5 kilogram, which was, as alleged, in their joint knowledge.

Other co­accused Rajendra Tiwari and Idris Khan were charged

under Section 27­A of the NDPS Act that they delivered the illegal

cannabis in the house which was in possession of accused

appellant at Village Chikhali, Police Station Dondi and thereby

facilitated trafficking of cannabis carried out by appellant and her

two children(co­accused Pila Ram and Rajkumar alias Raju).

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5. The case of the prosecution in brief is that on 15 th January

2011, the then station­in­charge of Police Station Dondi, PW­7

Vinay Singh Baghel, on being informed via telephone by station­in­

charge Rajhara about accused appellant of Village Chikhali keeping

‘ganja’(Cannabis) in her house for selling; gave this information to

C.S.P. Rajhara through telephone and prepared a written report in

this regard and sent it via Constable No. 1480. Thereafter, PW­7

Vinay Singh Baghel along with his beat staff, reached Village

Chikhali for action and summoned witnesses Komal Singh and

Chandrika Bai. Informing accused appellant about the information

and after giving notice and consent for search proceedings,

prepared the consent Panchnama. Station­in­Charge Vinay Singh

Bhaghel prepared his search Panchnama by allowing the accused

appellant to search him, police staff and witnesses first.

6. Thereafter, upon conducting lawful search of the house of the

accused appellant in front of the witnesses, ‘ganja’(cannabis) was

found in twenty twine sacks, search and seizure of Panchnama of

which was prepared. After physical verification of scales from

3 weigher Devlal Sinha, and upon weighing the recovered ganja, total

weight of ganja packed in 20(twenty) sacks was found to be 05

quintals, 21.5 kilogram. From each of the said sacks, two samples

of 50­50 gms. each were taken and the original ganja was labelled

‘A’ to ‘T’ and sample packets as “A­1’, ‘A­2’ till ‘T­1’, ‘T­2’. After the

ganja(cannabis) and sample packets were sealed and seized, the

appellant was given a notice under Section 91 CrPC. She failed to

produce any document in relation to being in possession of said

cannabis. Accused appellant on being questioned stated to be

carrying on the trade of cannabis together with her two sons, Pila

Ram and Raj Kumar alias Raju as well as with Rajendra Tiwari and

Idris Khan.

7. The FIR came to be registered and after completion of

investigation, charge­sheet under Sections 20(b) and 27­A of the

NDPS Act and Section 299 IPC was filed implicating 5 accused

persons including the present appellant.

8. The trial Court framed the charge under Section 20(b)(ii)(C) of

the NDPS Act against the present appellant and two other persons,

4 namely, Pila Ram and Raj Kumar alias Raju and two other persons,

namely, Rajendra Tiwari and Idris Khan were charged for the

offence punishable under Section 27­A of the NDPS Act.

9. So as to hold the accused persons guilty, the prosecution

examined 09 witnesses in all and statements of accused persons

were recorded under Section 313 CrPC in which they denied the

circumstances appearing against them in the prosecution case,

pleaded innocence and false implication.

10. The trial Court, after hearing the learned counsel for the

parties, held the appellant guilty for the offence under Section 20(b)

(ii)(C) of the NDPS Act and acquitted other four persons of all the

charges and while the matter being heard for sentence, it was

pointed out that the appellant is an old illiterate lady from the rural

background, having no previous criminal history but the learned

trial Judge, has not examined in totality, as what could be

appropriate punishment to her and sentenced the appellant for 15

years’ rigorous imprisonment and a fine of Rs. 1 lakh, in case of

failure to pay amount of fine, a sentence of rigorous imprisonment

5 for a period of three years to be undergone separately under the

judgment and order dated 8th November 2012.

11. The order of acquittal against the four co­accused persons was

never a matter of challenge at the instance of the prosecution. The

poor illiterate lady preferred an appeal before the High Court

against the impugned judgment but the High Court, examining the

conviction on merits, took note of the bare facts regarding the

compliance of Sections 42, 50 and 55 of the NDPS Act made and

since the psychotropic substance was recovered from the residence

of the appellant, considered it to be the basis for upholding

conviction and sentence of the appellant under the impugned

judgment dated 26th February 2018.

12. Neither the trial Court nor the High Court has considered that

the lady was illiterate and a senior citizen, was indeed residing but

completely unknown to law, with two grown up children, with no

previous background of being involved in any kind of criminal cases

at any point of time in her life time. The case of the prosecution

was that on being received a telephone call, PW­07 Vinay Singh

6 Baghel along with his beat staff reached Village Chikhali and

accused appellant, who was residing there, was served a notice and

other accused persons were not found at the time of search, the

present appellant was taken into custody and against the two co­

accused persons against whom there was an allegation that they

were involved in the illegal trade and who supplied this

psychotropic substance to the appellant, both were charged for

offence under Section 27­A of NDPS Act.

13. All the other four co­accused persons were acquitted by the

learned trial court under judgment dated 8 th November 2012 and

held the accused appellant guilty of the offence as she was in

possession of the house from where the psychotropic substance was

recovered and appeal preferred at her instance came to be

dismissed.

14. We are not dilating upon the procedure that was followed in

the instant case but after all the five accused persons faced trial,

unfortunately the appellant alone was held guilty, and the trial

Judge, without examining in totality of the matter and the other

7 salient facts into consideration, sentenced her to 15 years’ rigorous

imprisonment and a fine of Rs. 1 lakh, in case of default, further

imprisonment for a period of 3 years.

15. We have heard learned counsel for the appellant and also the

learned counsel for the State who has tried to persuade this Court

that looking into the nature of offence which has been committed by

the appellant, there should be no leniency in such matters,

particularly, when the offence has been proved against her beyond

doubt and conviction is upheld by the High Court under Section

20(b)(ii)(C) of the NDPS Act.

16. It may be noticed that the minimum sentence prescribed

under the NDPS Act for such offence under Section 20(b)(ii)(C) is 10

years which may extend to 20 years with a fine of Rs. 1 lakh which

may extend to Rs. 2 lakhs. While imposing higher than the

minimum punishment, such of the factors which are to be taken

into consideration have been provided under Section 32B of the

NDPS Act but after we have gone through the record with the

assistance of the counsel for the parties, we are of the view that the

8 learned trial Judge as well as the High Court have not taken into

consideration the factors to be kept in mind for imposing higher

than the minimum sentence provided under Section 32B of the

NDPS Act.

17. We are of the considered view that the offences under the

NDPS Act are very serious in nature and against the society at large

and no discretion is to be exercised in favour of such accused who

are indulged in such offences under the Act. It is a menace to the

society, no leniency should be shown to the accused persons who

are found guilty under the NDPS Act. But while upholding the

same, this Court cannot be oblivious of the other facts and

circumstances as projected in the present case that the old illiterate

lady from rural background, who was senior citizen at the time of

alleged incident, was residing in that house along with her husband

and two grown up children who may be into illegal trade but that

the prosecution failed to examine and taking note of the procedural

compliance as contemplated under Sections 42, 50 and 55 of the

NDPS Act, held the appellant guilty for the reason that she was

9 residing in that house but at the same time, this fact was

completely ignored that the other co­accused were also residing in

the same house and what was their trade, and who were those

persons who were involved into the illegal trade providing supplies

of psychotropic substances, prosecution has never cared to

examine.

18. We are not going to examine the question any further but

taking in totality of the matter and the background facts which

have come on record that she was an illiterate senior citizen on the

date of the incident, i.e., 15 th January 2011, having no criminal

record, and was from the rural background, completely unknown to

the law and unaware of what was happening surrounding her, all

these incidental facts have not been considered by the learned trial

Court while awarding sentence to the appellant.

19. In the given facts and circumstances, while upholding

conviction of the appellant, and considering the old age of the

accused appellant, who is a poor illiterate lady completely unaware

of the consequences, we consider it appropriate that the sentence of

10 the accused appellant be reduced to 12 years’ rigorous

imprisonment and a fine of Rs. 1 lakh and in default, to further

undergo rigorous imprisonment of six months which shall meet the

ends of justice. Ordered accordingly.

20. Consequently, the appeal with the aforesaid modifications

stands disposed of.

21. Pending application(s), if any, shall stand disposed of.

……………………..J. (AJAY RASTOGI)

………………………J. (C.T. RAVIKUMAR) NEW DELHI AUGUST 10, 2022.

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