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Madhya Pradesh High Court · body

2003 DIGILAW 1331 (MP)

Trilokchand v. State of M. P.

2003-12-06

A.K.TIWARI

body2003
JUDGMENT Appellant herein stands convicted under section 8/21, Narcotic Drugs and Psychotropic Substances Act, 1985 by Additional Sessions Judge, Bhanpura, District Mandsaur (M.P.) vide his judgment and order passed on 31.8.2000 in Special Case No. 8/94. Briefly stated the prosecution's case is that on 19.5.1993 at 9.00 a.m. Station House Officer of Police Station, Bhanpura, R.C. Bhakar (PW 8) got secret information that owner of flour mill, named Trilok, is keeping in his possession and selling smack at his flour mi1l and Raghu is selling smack at his shop. On receiving the information, R.C. Bhakar (PW 8) decided to make a search at the flour mill of Trilok and at the hotel. R.C. Bhakar (PW 8) entered the information in Roznamcha and he also apprised Sub-Divisional Officer (Police), Garoth, of the information received. Thereafter, R.C. Bhakar (PW 8) reached with search party at the flour mm of Trilok where Trilok, i.e., the appellant was found standing on the door of his shop. On being asked, he gave his identity as Trilok. R.C. Bhakar told the appellant that he had information that he (appellant) is engaged in selling smack and he is keeping smack in his possession. Therefore, he wants to make a search. After obtaining the consent of appellant, R.C. Bhakar (PW 8) made search of his shop, i.e., flour mill and smack kept in a small plastic bag was recovered from the capacitor. The substance recovered was checked and examined and found to be smack. Search memo (panchnama) (Ex. P-7) was prepared by RC. Bhakar (PW 8). A balance was called and the recovered substance, which was in the form of powder, was weighed and its weight was found to be 35 gm., out of which two samples of 5 gm. each were taken out from the substance and memorandum (Ex. P-9) regarding weighment of recovered substance was prepared by RC. Bhakar (PW 8). Both samples and the remaining substance were sealed and seized vide seizure memo (Ex. P-4). Appellant and his brother Arun were arrested vide arrest memos Ex. P-10 & P-11 respectively for keeping in their possession the contraband substance 'in violation of the NDPS Act. An offence was registered at Police Station, Bhanpura, and after due investigation, charge-sheet against the appellant and his brother Arun was filed. P-4). Appellant and his brother Arun were arrested vide arrest memos Ex. P-10 & P-11 respectively for keeping in their possession the contraband substance 'in violation of the NDPS Act. An offence was registered at Police Station, Bhanpura, and after due investigation, charge-sheet against the appellant and his brother Arun was filed. Trial Court framed charge under section 8/21 of Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as Act). Charge against Arun Kumar, i.e., brother of appellant was quashed by this Court in Criminal Revision No. 155/1994 vide order dated 11.2.1998. Therefore, appellant alone was tried for the offence punishable under section 8/21 of NDPS Act and after trial, he was convicted under the aforesaid section and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. One lakh; in default of payment of fine, he was directed to undergo simple imprisonment for five years. Hence, this appeal. Learned counsel for appellant did not, challenge the finding of conviction of appellant. His only contention is that in view of the amended provisions, the sentence awarded to appellant be reduced to the term already undergone' by him. Learned counsel for State has refuted the contention. His submission is that at the time of commission of the offence and awarding the sentence, rigorous imprisonment for ten years and fine of Rupees one lakh was the minimum sentence, which could be inflicted under section 8/21 of NDPS Act. Hence, no question of reducing the sentence arises. In Chitralal Dhakad's case reported in 2003 (2) ERF, Single Bench of this Court, relying on decision of Division Bench of this Court in W.P. No. 537/2003, 2004 (1) JLJ 133 Ramesh v. State of M.P., has held that the benefit of reduced sentence could be allowed in pending appeals also. Therefore, the submission of learned counsel cannot be accepted and the sentence could be inflicted in accordance with the amended provisions. According to the Notification No. S.O. 1055 (E) dated 19th October, 2001, small quantity of opium derivative other than heroin, morphine and those listed therein, is 5 gm. and the commercial quantity thereof is 250 gm. Smack is the derivative of opium not listed in the table, hence the small quantity of smack would be taken to be prescribed as per aforesaid notification to be 5 gm. and commercial quantity as 250 gm. and the commercial quantity thereof is 250 gm. Smack is the derivative of opium not listed in the table, hence the small quantity of smack would be taken to be prescribed as per aforesaid notification to be 5 gm. and commercial quantity as 250 gm. Quantity seized from the appellant is said to be 35 gm. which is much less than the commercial quantity. Therefore, appellant's case might be dealt under section 21 (b) of the Act. According to section 21 (b) of the Act, where the contravention involves quantity lesser than commercial quantity, but greater than small quantity, accused could be punished with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees. It is thus clear that in case where the quantity involved is less than the commercial quantity prescribed by the Act (as it stood after amendment) imprisonment for term lesser than the rigorous imprisonment for ten years and fine of less than one lakh rupees could also be awarded. The quantity of smack seized from the possession of appellant is 35 gm. which is much less than the prescribed commercial quantity. Appellant is first offender and he is under custody from 19.3.1993 to 16.9.1993 and 6.10.1993 to 31.5.1994 and from 21.8.2000 till date and thus, he has undergone imprisonment for about four years, five and half months. Keeping in view the quantity of substance seized from his possession, sentence for imprisonment already undergone by him and a fine of Rs. 15,000/- (Rupees fifteen thousand) will be sufficient and would meet the ends of justice, in the circumstances of the case. Hence, this appeal is party allowed. The conviction of the appellant under section 8/21, NDPS Act is confirmed, but the sentence awarded to him is reduced to rigorous imprisonment for term already undergone by him and to pay a fine of Rs. 15,000/- (Rupees fifteen thousand); in default of payment of fine, he shall suffer further rigorous imprisonment for one year. Trial Court's order regarding disposal of the seized substance is maintained.