# Ishwar Lal Roka v. State of U.P

- **Citation:** (2022) 5 ILRA 88
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-05
- **Case number:** Criminal Appeal No. 1825 of 2016
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ishwar-lal-roka-v-state-of-u-p-48601
- **Pages:** 5

## Headnote

5 All. Ishwar Lal Roka Vs. State of U.P.
89
G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 374(2) - Narcotic
Drugs and Psychotropic Substance Act,
1985-Sections 8/20-appellant being poor
was not able to pay the fine of Rs. one lacappellant had already undergone the
sentence of 10 years as awarded by the
trial court-In default of fine, the trial court
awarded 10 months simple imprisonment
instead 2 years and 6 months-appellant
had already spent 5 months in jail, in
default of payment of fine-appellant be
released forthwith.(Para 2 to 16)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

88 INDIAN LAW REPORTS ALLAHABAD SERIES

39. Here, on the record, there is no
evidence to establish that appellant/ convict
Srikant had intention to kill the deceased
and had reached at the spot alongwith coconvicts to kill Hari Babu with prior
meeting of minds with co-convicts as the
complainant has written in his written
report that when the deceased started to
remove the thorny bushes from the
boundary of the field, the appellants/
convicts reached there at the spot and
started abusing and beating the deceased
with 'lathis-dandas' and when he reached
the spot after hearing the noise, Sri Kant
and Ram Lakhan started beating him and
meanwhile appellants/ convicts Sri Kamla
Kant and Sunil Kant fired upon the
deceased. These circumstances show that
there is possibility that the appellant Sri
Kant may not be aware of the fact that the
co-appellants/co-convicts will cause the
death of the deceased Hari Babu by firing
upon him. Hence this appellant/ convict
deserves the benefit of doubt to be given to
him and he may be held liable only for the
offence under Section 323 I.P.C. for
causing simple injuries to the complainant
Ram Babu Shukla.

40. To sum up, the appellants/
convicts Kamla Kant and Sunil Kant have
rightly been found guilty and punished for
the offence punishable under Sections 302
readwith Section 34 I.P.C. and the sentence
awarded to them by the trial court is hereby
affirmed.

However, the conviction and
sentence awarded to them Under Section
323/34 is hereby set aside.

41. As far as the appellant/convict Sri
Kant is concerned, his conviction under
Section 302 readwith Section 34 I.P.C. is
set aside and his conviction under

Section 323 I.P.C. is hereby
affirmed.

42. The appellants/ convicts Kamla
Kant and Sunil Kant are already in jail.
They shall serve out the sentence awarded
to them under Section 302 read with
Section 34 I.P.C.

43. The appellant/ convict Sri Kant is
on bail. He shall surrender before the
concerned trial court to serve out the
sentence awarded to him under Section 323
I.P.C. awarded by the trial court, if not
served already.

44. These appeals are partly allowed.

45. Let a copy of this order alongwith
original record be transmitted to the trial
court concerned forthwith for information
and necessary action.

46. Shri R.K. Dwivedi, Amicus
Curaie shall be paid remuneration as per
Rules.
----------
(2022)05ILR A88
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.05.2022

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Appeal No. 1825 of 2016

Ishwar Lal Roka ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Vishwa Nath Singh, Manoj Kumar Singh,
Piyush Kumar Singh

Counsel for the Respondents:
5 All. Ishwar Lal Roka Vs. State of U.P.
89
G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 374(2) - Narcotic
Drugs and Psychotropic Substance Act,
1985-Sections 8/20-appellant being poor
was not able to pay the fine of Rs. one lacappellant had already undergone the
sentence of 10 years as awarded by the
trial court-In default of fine, the trial court
awarded 10 months simple imprisonment
instead 2 years and 6 months-appellant
had already spent 5 months in jail, in
default of payment of fine-appellant be
released forthwith.(Para 2 to 16)

The appeal is partly allowed. (E-6)

List of Cases cited:
1. Shanti Lal Vs St. of M.P.

(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1. This appeal has been filed against
the judgement and order dated 20.10.2016
passed by the A.S.J., court no. 5 Bahraich
in S.T. No. 14/2012 arsing out of case
crime no. 645 of 2011, under Sections 8/20
NDPS Act, whereby the trial court
convicted and sentenced the appellant u/s
20 NDPS Act for 10 years' rigorous
imprisonment with a fine of Rs. 1 lakh and
in default of payment of fine, ten months
additional simple imprisonment.

2. Brief fact of the case emerges as
such that on 5.12.2011 at 15.00 hours, the
informer informed to the police that one
Nepali person carrying charas will arrive
India
via
Nepalganj
Rupaidiha
main
highway from Nepal. On receiving this
information, Abhinav Kashyap, Assistant
Commander made Special Checking Squad
comprising SSBL personnel. The special
checking squad along with the informant
reached the check post which was situated at
Nepalganj Rupaidiha highway and started
waiting for accused-appellant. At 17.00
hours on pointing out of informer, the
suspected accused was intercepted for
checking. Even as the accused opened the
bag, he started fleeing from the spot. But the
special checking squad immediately nabbed
him and on asking his name and address and
the reason for fleeing, he told that there is
charas in his bag and further told his name
Ishwar Lal Roka, S/o Jam Bahadur Roka,
R/o Nagarpalika Police Station Chowki
Ghorahi Ward no. 10 District Dang Western
Nepal, aged 41 years. On asking the reason
for bringing or taking the alleged charas, the
accused told that one week ago, at Weston
Hospital, Nepalganj one unknown person
met him and offered Indian Rs. 15,000/- for
delivering a bag containing Charas to
Roadways Bus stop Rupaidiha. On spot
contraband article was tested by Drug
Testing Kit and prima facie, the recovered
contraband article was found to be charas,
therefore,
the
accused-appellant
was
immediately arrested. The accused was
given choice to get the recovered article
checked by any officer or Magistrate. The
appellant however opted his search by the
cheeking squad himself. Accordingly, search
was conducted on the spot and consent letter
was signed by the accused-appellant. Bag of
the accused was searched. It was found that
a box containing charas, Indian Rs. 2,500/-
and
a
Samsung
Mobile.
Then,
the
information regarding arrest of the accusedappellant was given by the police authority
to his wife Lal Kumari. On weighing by the
scale available there, the recovered charas
was 5kg and 238gms. Out of which, 25-25
gms charas was separately sealed for sample
and the remaining charas was sealed in
another packet. The accused was brought to
the police station- Rupaidiha, where the case
under section 8/20 of NDPS Act was
registered as case crime no. 645 of 2011.
90 INDIAN LAW REPORTS ALLAHABAD SERIES

3. After investigation, charge-sheet
was
submitted
against
the
accusedappellant before sessions court, Bahraich.
This case was transferred to the Special
Judge, court no. 4, Bahraich, where the
charge was framed. The accused-appellant
pleaded not guilty of the charges levelled
against him and he contended that he was
falsely implicated in this case and claimed
to be tried.

4. In order to prove its case, the
prosecution examined PW 1 Sonam; PW 2
Abhinav Kashyap, complainant; PW 3
Umesh Kumar Bhardwaj.

5. The trial court on the basis of
evidence adduced by the prosecution held
that the prosecution succeeded to prove the
charge against the appellant. It was also
held that all the procedural technicalities
were complied with. Thus, the trial court
convicted the appellant for possessing the
contraband article Charas weighing 5kg
and 238gms from his possession and
sentenced the appellant as aforesaid.

6. Being aggrieved and dissatisfied
with the aforesaid order, the appellant
preferred this appeal before this Court.

7. I have heard learned counsel for the
parties and perused the record.

8. Submission of the counsel for the
appellant is that the finding given by the
trial court is perverse and bad in the eye of
law. There are major contradictions in the
statement of the witness. He has also
submitted that there is no independent
witness examined by the prosecution. All
the witnesses shown in the recovery memo
is false and concocted and there was noncompliance of the mandatory provision of
NDPS Act at the time of search and seizure.
It was not told to the appellant that he has
right to be searched before the Gazetted
officer or magistrate. Thus, there was also
non-compliance of Sections 50, 56 and 57
of NDPS Act.

9. The counsel for the appellant
further argued that the appellant was
neither in possession of any narcotics nor
any incriminating article recovered from
his possession.

10. Lastly, the counsel for the
appellant submits that the appellant has no
previous criminal history and he is
languishing in jail since 5.12.2011. The
appellant
has
already
undergone
the
sentence of 10 years as awarded by the trial
court. Since he is not able to pay the fine of
Rs. 1 lakh as aforesaid. So, in default of the
same, the appellant shall undergo for 10
months' additional simple imprisonment as
awarded by the trial court. Therefore, the
counsel submits that liberal view may be
taken against the appellant and the
appellant be released forthwith as he
already remained in incarceration about 10
years and 5 months.

11. Learned AGA opposed and
submitted that all the procedure literally
complied by the arresting officer at the time
of search. He further contended that
provision of CrPC makes it clear that the
court of law can award imprisonment in
default of payment of fine, one fourth of
the term of the imprisonment which the
court is competent to inflict as punishment
for
the
offence
otherwise
than
as
imprisonment in default of payment of the
fine. Thus, in this case, in default of
payment of fine, the court is competent to
award 2 years and 6 months in addition to
substantive sentence. However, the trial
court already taking liberal view awarded
5 All. Ishwar Lal Roka Vs. State of U.P.
91
10 months' additional simple imprisonment
in default of payment of fine, which could
not be said to be unlawful or otherwise
illegal. Thus, the appeal deserves to be
dismissed.

12. Insofar as conviction recorded by
the trial court is concerned, there is no
illegality, irregularity or perversity in the
impugned order passed by the trial court.
The appellant has already undergone
substantial part of sentence of 10 years
rigorous imprisonment and in default of
payment of fine, he has already spent 5
months in jail.

13. The counsel for appellant has
relied upon the judgement of the Apex
Court in Shanti Lal vs. State of M.P.
decided on 8.10.2007. The relevant portion
of which is reproduced hereunder:

"36.
We
are
mindful
and
conscious that the present case is under the
NDPS Act Section 18 quoted above
provides penalty for certain offences in
relation to opium poppy and opium.
Minimum fine contemplated by the said
provision is rupees one lakh [fine which
shall not be less than one lakh rupees]. It is
also true that the appellant has been
ordered to undergo substantive sentence of
rigorous imprisonment for ten years which
is minimum. It is equally true that
maximum sentence imposable on the
appellant is twenty years. The learned
counsel for the State again is right in
submitting that clause (b) of sub-section (1)
of Section 30, CrPC authorizes the Court to
award imprisonment in default of payment
of
fine
up
to
one-fourth
term
of
imprisonment which the Court is competent
to inflict as punishment for the offence. But
considering
the
circumstances
placed
before us on behalf of the appellantaccused that he is very poor; he is merely a
carrier; he has to maintain his family; it
was his first offence; because of his
poverty, he could not pay the heavy amount
of fine (rupees one lakh) and if he is
ordered to remain in jail even after the
period of substantive sentence is over only
because of his inability to pay fine, serious
prejudice will be caused not only to him,
but also to his family members who are
innocent. We are, therefore, of the view that
though an amount of payment of fine of
rupees one lakh which is minimum as
specified in Section 18 of the Act cannot be
reduced in view of the legislative mandate,
ends of justice would be met if we retain
that part of the direction, but order that in
default of payment of fine of rupees one
lakh, the appellant shall undergo rigorous
imprisonment for six months instead of
three years as ordered by the trial court
and confirmed by the High Court.

37. For the reasons aforesaid, the
appeal
is
partly
allowed,
conviction
recorded and sentence imposed on the
appellant
to
undergo
rigorous
imprisonment for ten years is confirmed.
An order of payment of fine of rupees one
lakh is also upheld. But an order that in
default of payment of fine, the appellant
shall undergo rigorous imprisonment for
three
years
is
reduced
to
rigorous
imprisonment for six months. To that extent,
the appeal filed by the appellant is allowed.
If the appellant has undergone substantive
sentence of rigorous imprisonment for ten
years as also rigorous imprisonment for six
months as modified by us in default of
payment of fine, the appellant shall be set
at liberty forthwith unless he is required in
any other offence. If the appellant has not
completed the said period, he will be
released
after
the
period
indicated
hereinabove
is
over.
The
appeal
is
accordingly disposed of."
92 INDIAN LAW REPORTS ALLAHABAD SERIES

14. Considering the aforesaid and the
law propounded by the apex court, I am of
the view that 10 months' additional simple
imprisonment is reduced to 5 months'
simple imprisionment. Thus, the appeal is
partly allowed.

15. If the appellant has undergone
substantive
sentence
of
rigorous
imprisonment for ten years as also simple
imprisonment of five months as modified
by this Court in default of payment of fine,
the appellant be set at liberty forthwith
unless he is required in any other offence.

16. Thus, the appeal is dismissed on
the point of conviction and partly
allowed on the point of sentence.

17. Office is directed to communicate
this order to the court concerned and send
back the lower court record, if already
received.
----------
(2022)05ILR A92
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.04.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Criminal Appeal No. 1834 of 2008

Jaswant Singh & Anr. ...Appellants
Versus
State of U.P. ...Respondents

Counsel for the Appellants:
Sri Rajeev Sisodia, Sri Ajay Kumar Barnwal,
Sri Atul Sisodia, Sri C.V.S. Raghuvanshi, Sri
J.P.S. Chauhan, Sri R.K. Shukla, Sri Ramesh
Kumar Shukla, Sri S.A., Sri V. Singh, Sri
Kamal Krishna (Senior Adv.), Sri Gaurav
Singh

Counsel for the Respondents:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal
Code,
1860-Section
302/34challenge to-conviction-A dispute related
to land property was going on between
four brothers-on account of the said
dispute, informant's wife was burnt alive
by the appellants-as per statement of PW2, deceased was admitted in hospital in
burnt state and died-PW-3, however,
turned hostile but he stated that she was
admitted into the hospital but he did not
know how she got burnt-the statement of
PW-4, a child witness, the daughter of the
deceased has been found credit worthy, as
no
inconsistency,
improbability
and
embellishment could be found thereinPW-6 doctor opined that she was deep
burnt and appearance was pugilisticevidence led by the prosecution add
weight to the prosecution story.(Para 1 to
52)

The appeal is dismissed. (E-6)

List of Cases cited:
1. Janardan Dube & ors. Vs St. of U.P. (2019) 4
ADJ 307

2. Gura Singh Vs St. of Raj. (2001) 2 SCC 205

3. Bhagwan Singh Vs St. of Har. (1976) AIR 202

4. Ramesh Harijan Vs St. of U.P. (2012) 5 SCC
777

5. Haradhan Das Vs St. of W.B. (2013) 2 SCC
197

6. Lahu Kamlakar Patil & anr.. Vs St. of Mah.
(2013) 6 SCC 417

7. Maheshwar Tigga Vs St. of Jharkand (2020)
10 SCC 108