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Madhya Pradesh High Court · body

2003 DIGILAW 1303 (MP)

Jakir Khan v. State of M. P.

2003-11-28

A.K.TIWARI

body2003
JUDGMENT The appellant stands convicted under section 8 read with section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Briefly stated prosecution case is that on 10.6.1997, M.K. Upadhyaya (PW 8) who was the Station House Officer of Police Station, Nagda, received information that a person is selling "poppy husk" illegally at Kasai Mohalla, Cross Road. M.K. Upadhyaya (PW 8) prepared memorandum (Ex. P-l) regarding the receipt of information and apprised C.S.P. of the information. After making entry in Roj-Namcha, M.K. Upadhyaya (PW 8) reached with the force on the spot. The appellant was informed by M.K. Upadhyaya (PW 8) that he wanted to search his bag as he had information about the "poppy husk", being with him. He also informed that he could elect either to be searched by the witness (M.K. Upadhyaya) or the search could be made by Gazetted Officer and after obtaining the consent from the appellant M.K. Upadhyaya (PW 8) searched the bag of the appellant. On search being made, about 800 gms. of "poppy husk" was found carried in the bag' and Rs. 1,419/- were found on the person of the appellant. Appellant was asked to produce licence, but he informed that he had no licence of any kind. Sample was taken from the' 'poppy husk" found in search. The sample and the "poppy husk" were seized and sealed. The appellant was arrested after due information. Appellant and the seized husk and sample was taken to the Police Station and Crime No. 208/97 under section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 was registered at the Police Station and after due investigation, challan against the appellant was filed. Appellant abjured his guilt and pleaded not guilty. Therefore, he was tried for the charge under section 8/15 of the NDPS Act and after trial he was convicted under section 8/15 of Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to undergo imprisonment for ten years and to pay a fine of rupees one lakh. Hence, this appeal. Although Manoj (PW 1) Kailash (PW 2) and Teju (PW 3) and Ramswaroop (PW 6) had turned hostile and have not supported the case of the prosecution, but testimony of M.K. Upadhyaya (PW 8) is trust worthy. His testimony does not suffer from any infirmity and it can be safely acted upon in the facts and circumstances of the case. Although Manoj (PW 1) Kailash (PW 2) and Teju (PW 3) and Ramswaroop (PW 6) had turned hostile and have not supported the case of the prosecution, but testimony of M.K. Upadhyaya (PW 8) is trust worthy. His testimony does not suffer from any infirmity and it can be safely acted upon in the facts and circumstances of the case. Learned counsel for the appellant could not point out any infirmity in the case of prosecution. Learned counsel for the appellant has raised the contention that the sentence awarded to the appellant is harsh. Learned counsel has submitted that under section 15(b) of the NDPS Act where the contravention involves quantity lesser than the commercial quantity, the maximum term of imprisonment, for which the offender may be sentenced, is 10 years and fine amount of Rs. One lakh. Any minimum jail sentence and fine amount have not been prescribed under the above section as such the rider of ten years rigorous imprisonment and fine of rupees one lakh as minimum sentence has been removed. Further submission of the learned counsel for the appellant is that according to the prosecution, 800 gms of "poppy husk" (poppy straw) has been seized from the possession of the appellant. Therefore, the contravention involves quantity lesser than the small quantity, so the appellant could have been punished with imprisonment for any term up to six months or fine upto ten thousand rupees. Learned counsel submits that looking to the quantity involved and circumstances of the case, awarding of maximum sentence prescribed is not warranted, therefore, the sentence awarded be reduced. Learned counsel for the State has opposed the prayer of the appellant saying that when the offence was committed, amended provisions were not in force. So, the appellant cannot get the benefit of amended provisions. In Chhitarlal Dhakad v. Government of India through Narcotics Bureau 2003(2) EFR Single Bench of this Court, relying upon decision of Division Bench of this Court rendered in W.P. No. 537/2003 Ramesh v. State of M.P. has held that in pending appeals also the benefit of reduced sentence could be allowed. According to Notification No. S.O. 1055(E) Dated 19th October, 2001, the commercial quantity of poppy straw is 50 Kg. and small quantity is 1000 gms., 800 gms. of 'poppy husk" (poppy straw) is said to be seized from the appellant. According to Notification No. S.O. 1055(E) Dated 19th October, 2001, the commercial quantity of poppy straw is 50 Kg. and small quantity is 1000 gms., 800 gms. of 'poppy husk" (poppy straw) is said to be seized from the appellant. So, it could be said that the case of the appellant would have been governed by the provisions of section 15(a) of the NDPS Act, had this provision stood incorporated at the time of passing the impugned judgment. After the amendment substituted by Act No.9 of 2001 dated 9th May, 2001 w.e.f. 2nd October, 2001. Therefore, jail sentence less than ten years and fine less than rupees one lakh, could also be awarded. Lifting of bar of awarding minimum ten years rigorous imprisonment and fine of one lakh rupees indicates that legislature intended that while awarding the sentence, the quantity of substance seized shall also be a relevant factor to be kept in mind. As the quantity of the substance seized from the possession of the appellant is 800 gms. while the small quantity prescribed is 1000 gms. rigorous imprisonment for even six months could have been awarded. The appellant is first offender. He is under custody from 11.06.1997 and thus he has undergone imprisonment for about more than six year and five month. Keeping in view the quantity of the substance seized from his possession, the sentence for term already undergone by him will be sufficient and it would be proper to set aside the sentence of fine imposed on him. Hence, this appeal is partly allowed. The conviction of the appellant is confirmed, but the sentence awarded to him is reduced to the period already undergone by him. Trial Court's order regarding disposal of the substance is maintained. Appellant be set at liberty, if no required in any other case.