Search And Seizure Before Magistrate Under Section 50 Of NDPS Not Mandatory In All Cases

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The criminal jurisprudence, with the passage of time, has laid emphasis on victimology which fundamentally is a perception of a trial from the viewpoint of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regard and respect in certain countries…. it is the duty of the court to see that the victim’s right is protected.”

So far as punishment awarded and fine imposed against the appellants is concerned, the punishment awarded to the appellant Kriti Bahadur is liable to be reduced to 11 years and punishment awarded to the appellant Ramesh Rana is liable to be reduced to 12 years and the period of imprisonment according to the default stipulation is liable to be reduced to one year in respect of appellant Dil Bahadur and in respect to each appellants Kriti Bahadur and Ramesh it is liable to be reduced to two years.

On the basis of evidence adduced by the prosecution, it has been proved that charas of weight 7 kg 200 gm was recovered from possession of appellant Dil Bahadur, whereas of weight 15 Kg 450 gm was recovered from possession of appellant Kriti Bahadur and charas of weight 16 kg was recovered from possession of appellant Ramesh Rana on 30.05.2008 at 4.45 p.m. According to provision of Section 35 and 54 of N.D.P.S. inference may be drawn against the all appellants about criminal mental state and conscious possession of the aforesaid psychotropic substance charas recovered from the possession of the appellants. The appellants have not discharged their burden regarding conscious possession of charas by adducing defence evidence to contradict the version of the prosecution. According to Section 20 (Kha) (2) (Sa), N.D.P.S. Act, commercial quantity of charas was recovered from the possession of the appellants and this offence is punishable with minimum punishment of imprisonment for ten years and fine of amount of Rs. 1 lac has been prescribed.

The Senior Superintendent, Central Jail Varanasi has reported vide letter dated 04.08.2018 that appellant Ramesh has served out sentence of 10 years, 02 months and 05 days. The appellant Dil Bahadur has served out sentence of 10 years, 02 months and 05 days and appellant Kriti Bahadur has served out sentence of 10 years, 02 months and 05 days. This period shall be set off against the punishment awarded to them.

The appellants are detained in jail since their date of arrest, therefore, ends of justice would be subserved if the punishment order of the appellants is modified while affirming the conviction of the appellants.

Accordingly, conviction of the appellants is hereby affirmed and the impugned judgment and order dated 25.02.2010 is hereby modified as follows:

1) In Sessions Trial No. 22 of 2008, appellant Dil Bahadur is sentenced to undergo rigorous imprisonment for 10 years and amount of Rs. 1 lac shall be paid by him, otherwise he will serve out additional sentence of rigorous imprisonment for one year.

2) In Sessions Trial No. 23 of 2008, appellant Kriti Bahadur shall undergo rigorous imprisonment for 11 years. He shall pay amount of Rs. 2 lacs imposed against him, otherwise he will serve out additional sentence of two years.

3) In Sessions Trial No. 24 of 2008, the appellant Ramesh shall undergo rigorous imprisonment for 12 years. He shall pay amount of Rs. 2 lacs fine, otherwise he will serve out additional sentence for two years.

4) The period of detention during course of trial shall be set off against the punishment/imprisonment awarded against the appellants.

68. The provisions of Section 70 I.P.C. and the following exposition of law propounded by Hon’ble Apex Court are relevant regarding recovery of amount of fine imposed on the appellants.

Section 70 of Indian Penal Code provides as follows :

Fine leviable within six years, or during imprisonment. Death not to discharge property from liability.–The fine, or any part thereof which remains unpaid, may be levied at any time within six years after the passing of the sentence, and if, under the sentence, the offender be liable to imprisonment for a longer period than six years, then at any time previous to the expiration of that period; and the death of the offender does not discharge from the liability any property which would, after his death, be legally liable for his debts.

Section 431 of the Cr.P.C., 1973 provides as follows:

431. Money ordered to be paid recoverable as a fine.–Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine:

Provided that Section 421 shall, in its application to an order under Section 359, by virtue of this section, be construed as if in the proviso to sub-section (1) of Section 421, after the words and figures “under Section 357“, the words and figures “or an order for payment of costs under Section 359” had been inserted.

23. In the case of Harnam Singhv. State of H.P., reported in (1975) 3 SCC 343 the Apex court after considering provisions of Section 431 of Cr.P.C., 1898 has held as under-

“9. Every other appeal under Chapter XXXI, except an appeal from a sentence of fine, finally abates on the death of the appellant. By “every other appeal” is meant an appeal other than one against an order of acquittal, that is to say, an appeal against an order of conviction. Every appeal against conviction therefore abates on the death of the accused except an appeal from a sentence of fine. An appeal from a sentence of fine is excepted from the all-pervasive rule of abatement of criminal appeals for the reason that the fine constitutes a liability on the estate of the deceased and the legal representatives on whom the estate devolves are entitled to ward off that liability. By Section 70 of the Penal Code the fine can be levied at any time within six years after the passing of the sentence and if the offender has been sentenced for a longer period than six years, then at any time previous to the expiration of that period; “and the death of the offender does not discharge from the liability any property which would, after his death, be legally liable for his debts”. The fact that the offender has served the sentence in default of payment of fine is not a complete answer to the right of the Government to realise the fine because under the proviso to Section 386(1)(b) of the Code the court can, for special reasons to be recorded in writing, issue a warrant for realising the fine even if the offender has undergone the whole of the imprisonment in default of payment of fine. The sentence of fine remains outstanding though the right to recover the fine is circumscribed by a sort of a period of limitation prescribed by Section 70 of the Penal Code.”

This principle has also been reiterated by Hon’ble Apex Court in the case of State of A.P. Vs. S. Narasimha Kumar, reported in (2006) 3 SCC (Cri) 54.

In the aforesaid terms, all the three appeals are partly allowed.