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2003 DIGILAW 1305 (PNJ)

Satish Kumar v. State of Haryana

2003-09-17

VIRENDER SINGH

body2003
JUDGMENT Virender Singh, J. - Satish Kumar son of Giani Ram, resident of Umra (District Hisar), the appellant herein, stands convicted by the learned Additional Sessions Judge, Hisar vide impugned judgment dated 24/26.8.1998 under Section 17 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "the Act") and has been sentenced to undergo RI for ten years and to pay a fine of Rs. 1 lac, in default of payment of fine to further undergo RI for two years. Aggrieved by the impugned judgment of conviction and sentence, the appellant has preferred the present appeal. 2. In short, the case of the prosecution is that on 16.5.1997 while Jagat Singh, (PW2) SI/SHO along with other police officials was present at Surewala Chowk, he received a secret information that a young person is carrying opium and was waiting for a vehicle to go to village Litani and he was present at the turn from Barwala to Tohana. Considering the information to be true, a raiding party was prepared. The police party went to the spot where the appellant was found having a bag on his right shoulder. On seeing the police party, the appellant walked fast towards village Litani but he was apprehended. The prosecution case further is that on having doubt that the appellant is carrying some contraband, the investigating officer asked him whether he wanted to be searched in the presence of Gazetted Officer or Magistrate, the appellant showed his faith in the Investigating Officer. Thereafter, the search was conducted and opium was recovered from the appellant. 10 gms. of opium was separated as sample and the remaining 1 kg 490 gms opium was sealed with seal of JS and was taken into possession vide recovery memo Ex. P8. The appellant was arrested on the spot. Certain other formalities were also done at the spot. 3. After completion of the investigation, the present appeal was challaned. He was charged under Section 17 of the Act. 4. The prosecution in support of its case had examined as many as four witnesses. The affidavits were also tendered into evidence. The stand taken by the appellant as emerges in his statement recorded under Section 313 Criminal Procedure Code is of false implication. 5. After appreciating the entire evidence, the appellant was convicted and sentenced as indicated above. 6. I have heard Mr. Salil Bali, learned counsel for the appellant and Mr. The affidavits were also tendered into evidence. The stand taken by the appellant as emerges in his statement recorded under Section 313 Criminal Procedure Code is of false implication. 5. After appreciating the entire evidence, the appellant was convicted and sentenced as indicated above. 6. I have heard Mr. Salil Bali, learned counsel for the appellant and Mr. Vijay Dahiya, learned Assistant Advocate General, Haryana. With their assistance I have also gone through the entire record. 7. Mr. Bali does not assail the impugned judgment on merits and instead has confined his arguments to the quantum of sentence. It is contended by the learned counsel for the appellant that the quantity allegedly recovered from the appellant is non-commercial. He further contends that the appellant at the time of alleged occurrence was of the age of 22-23 years. He might have got married by now and settled his life. Mr. Bali then contends that the appellant after his arrest remained in custody for some time and then was on bail during trial. After his conviction on 26.8.1998 his substantive sentence was suspended on 30.5.2002. Thus, the total period comes to about four years. He the contends that the quantity of contraband allegedly recovered does not fall under the commercial quantity and in such eventuality the present appellant deserves the concession of reduction of sentence in the light of new provisions of the Act as substituted by Act No. 9 of 2001. 8. In support of his arguments, the learned counsel for the appellant has relied upon the judgment of this Court rendered in Criminal Appeal No. 1451-SB of 2001, decided on 24.10.2002 (Babu Khan v. State of Haryana), in which the recovery of the opium was 1 kg. and the substantive sentence of the appellant was reduced from ten years to three years and the sentence of fine was reduced to Rs. 3000/-. 9. On the other hand, Mr. Vijay Dahiya, learned Assistant Advocate General, Haryana refutes the arguments advanced by the learned counsel for the appellant and contends that the appellant does not deserve any sympathy so far as quantum of sentence is concerned. 10. After hearing the rival contentions of both the sides, I am of the considered view that the appellant certainly deserves reduction in the quantum of sentence. 10. After hearing the rival contentions of both the sides, I am of the considered view that the appellant certainly deserves reduction in the quantum of sentence. The sentence was imposed upon the appellant on the assumption that he deserves rigorous imprisonment for ten years which was the minimum sentence. Now the law has undergone change and the minimum sentence which has to be imposed upon the accused would be applicable only to the recovery of contraband which falls under the head commercial quantity. There is otherwise no dispute that the provisions of new Act as substituted by Act No. 9 of 2001 would also be applicable to the appeals although the alleged offences under this Act were committed prior to the amendment. For reference, I can refer to Ran Singh v. State of Haryana, 2002(3) RCC 425. 11. Admittedly, the alleged recovery of the contraband from the appellant is 1.5 kgs. of opium and having regard to all the circumstances of the case, I am of the view that the ends of justice would be adequately met if the substantive sentence imposed upon the appellant is reduced to the period already undergone by him. It is ordered accordingly. The sentence of fine is also reduced to Rs. 5,000/-. The appellant shall deposit the fine within three months from the date of receipt of the certified copy of this order. In default of payment of fine, the appellant shall further undergo rigorous imprisonment for a period of three months. 12. With the modification in the quantum of sentence as indicated above, the present appeal is hereby dismissed. Appeal dismissed.