# Ram Teerth (In Jail) v. State of U.P. 364 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2021) 2 ILRA 363
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021
- **Case number:** Criminal Appeal No. 209 of 2021
- **Bench:** Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-teerth-in-jail-v-state-of-u-p-364-indian-law-reports-allahabad-series-46795
- **Pages:** 4

## Headnote

Law-Code
of
Criminal
Procedure, 1973-Section 374(2) & The
Narcotic
Drugs
and
Psychotropic
Substances Act,1985-Section 20(b)(ii)(c)-
modification of- quantum of sentence -on
account of poverty, appellant has to
undergo three years additional rigorous
imprisonment in default of payment of
fine of Rs. One lac as per section 18 of the
Act- appellant continuously is in jail-he
has already undergone 12 years of his
sentence -period of rigorous imprisonment
for three years in default of payment of
fine may be reduced- appellant shall be
released after the period of sentence, is
over. (Para 2 to 13)

The appeal is partly allowed. (E-5)

List of Cases cited: -

## Text

2 All. Ram Teerth Vs. State of U.P.
363
necessary and if the record is not available and
reconstruction is not possible, then following
two courses are open to the appellate court :-

(i). To order for re trial after setting
aside the conviction; or,

ii). If there is a long gap, then close
the matter for want of record as the retrial will
also not serve any purpose as the relevant
documents are not available.

It is also settled law that appeal
cannot be decided in the absence of trial court
record.

19. In the present matter, the merit of the
case cannot be looked into for want of record.
The report of the District Judge, Lucknow and
the officer-in-charge of the record room have
established that the construction of the record is
not possible.

20. In the present matter, the incident took
place in the year 1981 and after concluding the
trial, the accused was convicted on 29.1.1987.
Thereafter this appeal was filed on 4.2.1987 and
record was called for but record could not be
made available and several efforts were made to
get
record
reconstructed
but
remained
unsuccessful.

21. Now about 33 years have passed
since conviction under challenge. It is a long
gap. Since no paper relating to this case is
available except the impugned judgement, there
remains no possibility of retrial at this stage,
after a long gap of about 39 years since the
occurrence of the incident.

22. It is clear that in these circumstances,
retrial will be a futile exercise. Therefore, there
remains no alternative except to close the matter
and acquit the appellant, as hearing of the
appeal in accordance with the provisions of
Section 386 Cr.P.C. is not possible. The order
of retrial will also not serve any purpose as in
the absence of relevant record, it is impossible
for the prosecution to establish the charges
against the appellant/accused.

23. Resultantly, the appeal is allowed.

24. The impugned judgment and order
dated 29.1.1987 passed in Sessions Trial
No.352 of 1981 ( State Vs. M.P.Singh and
another ) under Section 302 I.P.C. read with
Section 34 I.P.C. convicting the appellant to
undergo life imprisonment, is hereby set aside
and the appellant Chaman Lal, son of Satya
Narain is hereby acquitted of the offence under
Section 302 I.P.C. for want of trial court record
and there being no possibility of the retrial. The
appellant is in jail. He shall be released
immediately, if not required in any other case.

25. Let copy of this judgement be sent to
the Superintendent of Jail concerned.

26. Office is directed to send copy of this
judgment to the trial court concerned.

27. The learned Amicus Curiae shall be
paid remuneration as per rules.

The relevant record i.e. impugned
judgment be also sent back to trial court
concerned.
----------
(2021)02ILR A363
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.01.2021

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 209 of 2021

Ram Teerth ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party
364 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri R.K. Verma, Sri A.K. Srivastava, Sri
Ravindra
Balkrishna
Kanhere
(Amicus
Curiae)

Counsel for the Opposite Party:
A.G.A.

A.
Criminal
Law-Code
of
Criminal
Procedure, 1973-Section 374(2) & The
Narcotic
Drugs
and
Psychotropic
Substances Act,1985-Section 20(b)(ii)(c)-
modification of- quantum of sentence -on
account of poverty, appellant has to
undergo three years additional rigorous
imprisonment in default of payment of
fine of Rs. One lac as per section 18 of the
Act- appellant continuously is in jail-he
has already undergone 12 years of his
sentence -period of rigorous imprisonment
for three years in default of payment of
fine may be reduced- appellant shall be
released after the period of sentence, is
over. (Para 2 to 13)

The appeal is partly allowed. (E-5)

List of Cases cited: -

1. Shanti Lal Vs St. of M.P. (2008) 1 SCC (Cri) 1
(Delivered by Hon'ble Ajit Singh, J.)

1. The instant appeal has been preferred
against the impugned judgement and order
dated 19.06.2008 passed by the Additional
Sessions Judge/Fast Track Court, Court No.
2, Siddharth Nagar in Special Sessions Trial
No. 11 of 2008 (State Versus Ram Teerth)
arising out of Case Crime No. 11 of 2008,
Police Station Dhebrua, District Siddharth
Nagar whereby the appellant has been
convicted
under
Section
20(b)(ii)(c)of
N.D.P.S. Act and has been sentenced to
undergo 12 years rigorous imprisonment with
a fine of Rs.1,20,000/-. In default of payment
of fine, he has to undergo three years
additional rigorous imprisonment.

2. Heard Sri Ravindra Balkrishna
Kanhere, learned counsel for the appellant
as Amicus Curiae as well as learned
A.G.A. for the State.

3. Learned counsel for the appellant
has argued on merits but later on confined
his arguments on the quantum of sentence
as the appellant has already served the
sentence awarded to him by the trial court
and at present he is in jail in default of fine.
According to the prosecution itself, he was
arrested by the police on 11.01.2008 and is
continuously in jail since the date of his
arrest i.e. 11.01.2008. It is further stated
that since the appellant has already
undergone substantive period of sentence
imposed upon him by the trial court, now
his prayer is confined only for reduction of
remaining period of imprisonment and the
period which he has to undergo in default
of payment of fine for a period of three
years' additional rigorous imprisonment. In
this behalf, it has been submitted that since
higher
than
minimum
punishment
prescribed under N.D.P.S. Act upon the
conviction under Section 20(b)(ii)(c)of
N.D.P.S. Act has been awarded by the trial
court to the appellant without assigning
special reason and without even adverting
Section 32(B) of N.D.P.C. Act, the
sentence imposed by the trial court of 12
years rigorous imprisonment cannot be
sustained.

4. Learned counsel for the appellant
has submitted that the appellant is a very
poor person and even during trial there was
none to do proper pairvi on his behalf on
account of financial constraint. Therefore,
he is unable to deposit the heavy amount of
fine imposed upon him by the trial court. It
is stated that only on account of poverty, he
has to undergo three years additional
2 All. Ram Teerth Vs. State of U.P.
365
rigorous
imprisonment
in
default
of
payment of fine.

5. Learned A.G.A. has opposed the
aforesaid prayer of the learned counsel for
the appellant.

6. I have considered the rival
submissions made by learned counsel for
the parties and perused the impugned
judgement and order.

7. The issue which next arises for
consideration is that whether the sentence
awarded to the appellants which is higher
than the minimum sentence prescribed under
the Act for a person convicted under Sections
20(b)(ii)(c)of N.D.P.S. Act of the NDPS Act
is unduly harsh, excessive disproportionate
and arbitrary and the same has been imposed,
without assigning any reasons and without
taking into consideration of provisions of
Section 32(B) of the NDPS Act and hence
liable to be modified. The minimum
punishment prescribed for conviction under
Section 20(b)(ii)(c)of N.D.P.S. Act is 10
years R.I. And a fine of Rs. 1 lakh. Section
32(B) of the NDPS Act enumerates the
factors to be taken into account for imposing
higher than the minimum punishment. It will
be useful to reproduce Section 32(B) of the
NDPS Act herein below:-

"32B. Factors to be taken into
account for imposing higher than the
minimum punishment. Where a minimum
term of imprisonment or amount of fine is
prescribed for any offence committed under
this Act, the court may, in addition to such
factors as it may deem fit, take into account
the following factors for imposing a
punishment higher than the minimum term of
imprisonment or amount of fine, namely:

(a) the use or threat of use of
violence or arms by the offender;

(b) the fact that the offender
holds a public office and that he has
taken
advantage
of
that
office
in
committing the offence;

(c) the fact that the minors are
affected by the offence or the minors are
used for the commission of an offence;

(d) the fact that the offence is
committed in an educational institution
or social service facility or in the
immediate vicinity of such institution or
faculty or in other place to which school
children
and
students
resort
for
educational, sports and social activities.;

(e) the fact that the offender
belongs to organised international or any
other criminal group which is involved in
the commission of the offences; and

(f) the fact that the offender is
involved
in
other
illegal
activities
facilitated
by
commission
of
the
offence.]"

8. After going through the impugned
judgement and order very carefully, I find
that the trial court while imposing higher
than the minimum punishment prescribed
under the NDPS Act on conviction under
Section 20(b)(ii)(c)of N.D.P.S. Act of the
NDPS Act, upon the appellant has failed
even to advert to the factors enumerated
in Section 32(B) of the NDPS Act. In fact
no reason whatsoever is forthcoming in
the impugned judgement which lead the
trial court to impose higher than the
minimum punishment prescribed under
the Act upon the appellant.

9. The learned counsel has placed
reliance on the law laid down by the
Hon'ble Apex in (2008) 1 SCC (Cri) 1,
Shanti Lal Vs. State of M.P., in which the
Hon'ble Apex Court, almost under the
similar circumstances, has reduced the
sentence awarded to the accused-appellant
366 INDIAN LAW REPORTS ALLAHABAD SERIES
in default of payment of fine from three
years to six month by observing as under:-

"But
considering
the
circumstances placed before us on behalf
of the appellant-accused 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."

10. A perusal of the record shows that
the appellant was arrested by the police on
11.01.2008. During trial he is continuously
in jail because no order has been passed on
his bail application filed before this court
alongwith this appeal.

11. Thus, it is clear that the appellant
has undergone 12 years of his sentence and
period of rigorous imprisonment for three
years in default of payment of fine may be
reduced.

12. Taking into account the totality of
the facts and circumstances of the case and
relying on the law laid down by Hon'ble
Apex Court in the above cited Shanti Lal's
case, period of sentence of 12 years'
rigorous
imprisonment
has
already
undergone by him and the period of
imprisonment for three years in default of
payment of fine is reduced to the period of
six months imprisonment.

13. Accordingly, the appeal is partly
allowed. The appellant shall be released
after the period of sentence as indicated
herein above, is over.

14. The seized contraband shall be
destroyed by the officer concerned in
accordance with the notifications issued
under Section 52A of The Narcotic Drugs
and Psychotropic Substances Act.

15. Let a copy of this judgement and
order be sent to the court below within a
week for ensuring its compliance.

16. The registry is directed to pay Rs.
10,000/- to the learned counsel for the
appellant/Amicus Curiae as counsel's fee
without any delay and, in any case, within
one month from the date of receipt of copy
of this judgment.
----------
(2021)02ILR A366
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.01.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 231 of 2012

Ram Pal ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants: