1. Heard Sri Anil Kumar Pandey, learned counsel for the appellant, Sri Anirudh Kumar Singh, learned AGA-I for the State and perused the record.

2. The present criminal appeal has been preferred by the appellant against the judgement and order dated 13.08.2021 and punishment order dated 25.08.2021 passed by Special Judge (N.D.P.S. Act), Court No. 10, Barabanki in Special Sessions Trial (Special Criminal Case) No. 28/2014 (State of U.P. vs. Kamran) arising out of Case Crime No. 358/2013 relating to P.S. Zaidpur, District Barabanki, whereby he was convicted with sentence under Section 8/21(b) of N.D.P.S. Act for a period of five years rigorous imprisonment and with fine of Rs. 25,000/- and in case of default of payment of fine further six months additional imprisonment is awarded.

3. As per prosecution story, present appellant including one other co-accused person namely Anwar was arrested on 17.11.2013 and a contraband narcotic drug i.e. 100 gm of morphine was recovered from each of the accused. He submits that infact two FIR’s were lodged one is bearing No. 357 of 2013 and the next one is bearing no. 358 of 2013. The aforesaid recovery was shown from both the accused persons by a common recovery memo. Common investigation was done and charge sheet was filed bearing no. 13 of 2013. He submits that trials were separately done and one of the trial, which was proceeded in the matter of Anwar i.e., Sessions Trial No. 27/2014, wherein, Anwar had confessed the guilt and was awarded a punishment of one year rigorous imprisonment and with fine of Rs. 15,000/-. So far as the present appellant is concerned, the trial proceeded in S.S.T. No. 28/2014. During the trial appellant was enlarged on bail. At the level of framing of the charges, the present appellant denied the charges and chose to contest the case and in such an event, trial proceeded in respect with the present appellant.

4. The learned counsel for the appellant contended that infact since 2013 no witness was produced by the prosecution up till 2021 and the appellant was running on each and every date and appeared before the court as and when the case was fixed. He also added that prosecution had failed to produced any witness and as such it is a case where there is no any witness was produced for examination. He also submits that later on, when under the compelling circumstances, he moved an application for confession of the aforesaid offence, the trial proceeded in view of the application of confession so submitted.

5. He submits that on 11.08.2021, statement of present appellant was recorded under Section 313 of the Cr.P.C. and after considering the statement of the present appellant as well the material on record the trial court has passed the judgement dated 13.08.2021 and punishment order was passed on 25.08.2021. By the aforesaid judgement the sentence of 5 years rigorous imprisonment and fine of Rs. 25,000/- was awarded against the appellant.

6. Learned counsel for the appellant has argued that the trial court has failed to appreciate the evidences which was adduced before it. It was also not considered by the trail court that there is non compliance of mandatory provision of Section 50 of N.D.P.S. Act as the appellant was not produced before the Gazetted Officer or Magistrate for his search. The said occurrence was taken place on 17.11.2013 and after framing of the charges, not a single witness or evidence was produced before the court by prosecution in spite of full co-operation of the appellant. The quantum of sentence has also been fixed harshly. It has also not been considered by the trial court that the appellant had no criminal history and the identically situated co-accused who confessed his guilt was awarded one year sentence in the similar circumstances. Learned counsel for the appellant further argued that provision of Section 52, 55 and 57 of the N.D.P.S. Act was not complied with and the prosecution had failed to prove that the alleged contraband substance was under the safe custody. The place of occurrence was also highly suspicious and the provision provided for search and seizure in Notification No. 1/88 and 1/89 issued by the Central Government was also not been complied with. Further the alleged contraband substance was not sent for chemical examination within 72 hours from the time of occurrence and sampling is not done as per law. He submits that infact there is no any independent eye witness of the alleged recovery to support the prosecution version and there is lack of chain of evidences to prove the link of offence.

7. It was further contended that infact there is no minimum punishment prescribed under Section 8/21 (b) of N.D.P.S. Act though that can be extended up to 10 years of imprisonment. There are several authorities of the Hon'ble Apex Court as well as of this Hon'ble Court that in case of confession of the guilt, the liberal view would be adopted by the Court's. He also argued on the issue of proportionality of the sentence awarded as he has drawn attention towards one of the identical co-accused namely Anwar who had confessed his guilt at the level of framing of charges and therefore awarded a punishment of one year rigorous imprisonment as well as Rs. 15,000/- fine but so far as the present appellant is concerned after running about more than seven years from Court to Court, he chose to confess the guilt and thus after confession of the guilt, the court awarded five years rigorous imprisonment and Rs. 25,000/- fine which is a hard blow and it is not in consonance with the settled principles of reform of the prisoners.

8. Further he added that in fact the Hon’ble Apex Court in case of S.K. Sakkar vs. The State of West Bengal in Criminal Appeal No. 1661 of 2010 has held that it's manifest from Section 20 (i) of N.D.P.S. Act (as it stood in 1997) that even though a maximum sentence of five years rigorous imprisonment and a fine of Rs. 50,000/- was prescribed but there was no minimum mandatory sentence and as such the legislature had its own wisdom left it to the discretion of a court to award the minimum sentence albeit guided by the well known principles on the proportionality of sentence which is extracted below:

10. We find some merit in the submission noticed above. It may be noted that the appellant committed the crime in the year 1997, i.e., much before the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 came into force. The punishment for contravention in relation to cannabis plant or any other provision of the NDPS Act, in his case, would thus be regulated by the unamended Section 20 of the NDPS Act, as it stood before the amendment of 2001 and which reads as follows:

“20. Punishment for contravention in relation to cannabis plant and cannabis. Whoever, in contravention of any provision of this Act or any rule or order made or condition of license granted thereunder.

(a) cultivates any cannabis plant; or

(b) produces, manufactures, possesses, sells, purchases, transports, imports interState, exports interState or uses cannabis, shall be punishable,

(i) where such contravention relates to ganja or the cultivation of cannabis plant, with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to fifty thousand rupees;

(ii) where such contravention relates to cannabis other than ganja, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.” (emphasis supplied)

11. It is manifest from Section 20(i) of NDPS Act (as it stood in 1997), that even though a maximum sentence of five years RI and a fine of upto Rs. 50,000/ was prescribed but there was no minimum mandatory sentence. The Legislature had in its wisdom left it to the judicious discretion of a court to award the minimum sentence albeit guided by the well known principles on the proportionality of sentence. Taking into consideration the peculiar facts and circumstances of this case, it appears to us that the ends of justice would be adequately met if the appellant’s sentence is reduced to the extent of the period he has already undergone. We order accordingly."

9. Referring the aforesaid learned counsel has argued that infact there is no minimum punishment prescribed and therefore the proportionality of the sentence is to be looked into by the court concerned as the legislature has in its own wisdom left it to the discretion of a court concerned. He also referred one of the case Shanti Lal vs. State of M.P., reported in (2007) (2) EFR 702 wherein Hon’ble Apex Court reduced the sentence in lieu of fine of three years to six months. He further added that in fact the arguments on quantum of sentence is to be heard and in fact it should be as per the doctrine of proportionality as per various settled proposition of law.

10. The learned counsel has also placed reliance in the case of Mohd. Giasuddin Vs. State of AP, reported in AIR 1977 SC 1926, explaining rehabilitary & reformative aspects and while sentencing it has been observed by the Supreme Court, extracted as follows:-

"Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social behaviour has to be countered not by undue cruelty but by re-culturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries."

The Hon'ble Supreme Court has basically focused that anti social behaviour cannot be all time countered by civil laws but by being mild through re-culturization, the same can be achieved. Further the punishment to the injured person and the improvement cannot be adhered with causing injury.

11. After the aforesaid contention, learned counsel for the appellant argued on the quantum of sentence and has submitted that the accused appellant has been in jail prior to trial, for six months and after the trial he is in jail since 13.08.2021. He further submitted that accused has been convicted for a sentence of five years rigorous imprisonment and fine of Rs. 25,000/-. He submits that appellant has served a substantial period and as such accused-appellant should be released on undergone or substantial reduction in sentence may be done.

12. Countering the aforesaid learned AGA-I has very vehemently opposed the contention of the appellant's counsel and submits that learned trial court has rightly appreciated the statements of the witnesses and the evidences adduced by the prosecution and has passed the judgment and order. He also added that though there is no maximum punishment provided under Section 8/21-b but the same may be extended upto 10 years. He submitted that this is an offence which is against the society and as such the court may be harsh even applying the reformative theory of punishment.

13. In support of his contention learned counsel appearing for State has placed reliance on the judgment of Hon'ble Apex Court in case of State of Punjab vs. Bawa Singh in Criminal Appeal No. 90 of 2015 arising out of SLP (Crl.) No. 5382 of 2014, wherein it is held that liberal view while imposing inadequate sentence would have an impact of more harm to the justice system and the public confidence in the efficacy of law shall be undermined and there must be a serious threats to the society. The relevant part of the aforesaid judgement is extracted as under:-

8. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc."

16. A three-Judge Bench of this Court in Ahmed Hussein Vali Mohammed Saiyed vs. State of Gujarat, (2009) 7 SCC 254, observed as follows:

"99. ... The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to (sic break the) law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counterproductive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.

100. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the victim of the crime but the society at large while considering the imposition of appropriate [pic]punishment. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong."

17. We again reiterate in this case that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. Meagre sentence imposed solely on account of lapse of time without considering the degree of the offence will be counter-productive in the long run and against the interest of the society

18. Recently, in the cases of State of Madhya Pradesh vs. Bablu, (2014) 9 SCC 281 and State of Madhya Pradesh vs. Surendra Singh, 2014 (12) SCALE 672, after considering and following the earlier decisions, this Court reiterated the settled proposition of law that one of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which commensurate with gravity, nature of crime and the manner in which the offence is committed. One should keep in mind the social interest and conscience of the society while considering the determinative factor of sentence with gravity of crime. The punishment should not be so lenient that it shocks the conscience of the society. It is, therefore, solemn duty of the court to strike a proper balance while awarding the sentence as awarding lesser sentence encourages any criminal and, as a result of the same, the society suffers.

19. Perusal of the impugned order passed by the High Court would show that while reducing the sentence to the period already undergone, the High Court has not considered the law time and again laid down by this Court. Hence the impugned order passed by the High Court is set aside and the matter is remanded back to the High Court to pass a fresh order in the revision petition taking into consideration the law discussed hereinabove after giving an opportunity of hearing to the parties. The appeal is accordingly allowed with the aforesaid direction."

14. He has further placed reliance in case of Sham Sunder vs Puran, reported in (1990) 4 SCC 731, where the high court reduced the sentence for the offence under section 304 part I into undergone; the Supreme Court opined that the sentence needs to be enhanced being inadequate. It was held as under:-

"The court in fixing the punishment for any particular crime should take into consideration the nature of offence, the circumstances in which it was committed and the degree of deliberation shown by the offender. The measure of punishment should be proportionate to the gravity of offence."

15. Considering the contention of the counsel for the parties and after discussing the law laid down by the Hon’ble Apex Court as well as by the other High Courts, it emerges that basic tenant of criminal law is based on social contract theory that a crime is always against the society and not just against the victim. While prosecuting the perpetrators is necessary to prove his guilt. It is to ensure that the ends of justice are met. There are four established theory in the criminal jurisprudence with regard to awarding punishment i.e., Retributive theory, Deterrent theory, Preventive theory and Reformative theory. Reformative theory is based on concept that every person is capable of being reformed and reintegrated into the society. This is internationally the most acceptable theory of punishment in light of the International Human Rights Law. The Hon'ble Apex Court in Mohd. Giasudding (supra) has held that the reformative or the restorative theory of punishment states that the aim of the penal system of a state should be reforms of the criminals and not to purely punish them.

16. The judicial trend in the county has been towards striking a balance between the reform and punishment. The protection of society and stamping out a criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool maintain order and peace, should effectively meet challenges confronting the society. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system. In our country, the reformative and corrective approach has been adopted in criminal justice administration and thus so far as the instant case is concern, there is nothing on record to show that the accused-appellant is incapable for being reformative.

17. In the instant matter, the accused-appellant is in jail since 13.08.2021 and prior to that he has served six months of imprisonment and there is no any other criminal antecedent of the appellant. It is also considerable that every convict is entitled for the advantage of reformative and corrective jurisprudence. Further the appellant was on bail during the pendency of the trial and he did not misuse the liberty of bail so granted. He also kept on appearing on each dates fixed by the trial court and never jumped the bail. All these conduct and behavior of the appellant shows that he is liable to be reformed and there is no threat to the society from the appellant.

18. Considering the facts and circumstances of the case and the submission of learned counsel for the parties, the judgement and order dated 13.08.2021 and order dated 25.08.2021 passed by Special Judge (N.D.P.S. Act), Court No. 10, Barabanki in Special Sessions Trial (Special Criminal Case) No. 28/2014 (State of U.P. vs. Kamran) arising out of Case Crime No. 358/2013 relating to P.S. Zaidpur District Barabanki whereby the accused-appellant was convicted under Section 8/21(b) of N.D.P.S. Act for a sentence of five years imprisonment and with fine of Rs. 25,000/- and in case of default of payment of fine further six months additional rigorous imprisonment is hereby modified and sentence of five years rigorous imprisonment awarded to the appellant is reduced by four years and as such one year sentence as well as the fine of Rs. 25,000/- and in case of default further six months additional rigorous punishment is being upheld.

19. With the above modification, the appeal is accordingly disposed off, finally.

20. Office is directed to send the certified copy of this judgment along with lower court record to the court concerned for information and necessary action.