TMI Blog2022 (8) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, 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 residing in that house but at the same time, this fact was completely ignored that the other coaccused we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely. 3. The notice was issued by this Court by an Order dated 13th 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 co-accused 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 childr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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., 15th 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 illit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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