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2004 DIGILAW 538 (RAJ)

Himmat Singh v. State of Rajasthan

2004-04-08

H.R.PANWAR

body2004
JUDGMENT 1. - This appeal under Section 374(2) Cr.RC. Is directed against the judgment and order dated 27th February, 2004 passed by Special Judge, NDPS Cases, Sri Ganganagar (for short 'the trial court') in Criminal Case No. 6/2003, whereby the trial court found the appellant guilty for the offence under Section 8/21 of the NDPS Act (for short 'the Act') and convicted for the said offence. He was sentenced to undergo three months rigorous imprisonment and fine of Rs. 5,000/- in default of payment to further undergo fifteen days rigorous imprisonment. 2. Accused appellant Himmat Singh was put to trial for the offence under Section 8/21 of the Act on receiving secret information that the appellant is in possession of contraband smack. The police reached to the spot and found the appellant in possession of contraband smack weighing 3.330 gms. The appellant has no license to possess contraband smack. Before the trial court the prosecution has produced as many as 12 witnesses and the documents Exhibit-P/1 to P/32. The FSL report Exhibit-P/32 shows that the contraband contained Diacety Morphine (Heroin). This contraband falls in the category of Narcotics drug as defined in Section 2(xiv) and Section (xvi) (d) of the Act. PW-11 Smt. Suman Chowdhary, RPS, senior officer, stated that she received secret information that a person is in possession of smack, she recorded the information in Roznamch at S.No. 104 vide Exhibit-P/28, a copy of which was sent to Superintendent of Police, in compliance of Section 42(2) of the Act, receipt thereof is Exhibit-P/23. The accused was also served with the notice Exhibit-P2 as envisaged under Section 50 of the Act. The notice was given to the Motbirs (sic). The appellant was searched in the presence of the Motbirs and was found in possession of 6 gms smack (heroin) including the weight of container paper, the actual weight of smack (heroin) is 3.330 gms. The statement of PW-11 further finds support from the statement of PW-8 Rajaram, the Motbir as also PW-7 Sukhbir Singh. Narcotics drug recovered from the possession of the accused was sent to FSL for examination. From the FSL report Exhibit-P/32, it has been established that the contraband recovered from the possession of the appellant gave positive test for the presence of dactyl morphine (heroin). Narcotics drug recovered from the possession of the accused was sent to FSL for examination. From the FSL report Exhibit-P/32, it has been established that the contraband recovered from the possession of the appellant gave positive test for the presence of dactyl morphine (heroin). On appreciation of the evidence produced before the trial court, it came to the conclusion that the prosecution has established the case against the accused respondent beyond reasonable doubt. The accused appellant made statement under section 313 of Cr.RC. and produced DW-1 Rajendra Kumar Sharma as defence witness. He stated that police took the appellant in a jeep at about 6-7 PM evening whereas appellant was arrested at 12.40 PM (noon). Thus, the defence put forward by the accused was not found to be reliable. 3. I have heard learned counsel for the appellant and the learned Public Prosecutor. At the outset learned counsel for the appellant submits that the appellant does not challenge the conviction. He further submit that sentence awarded to the appellant is three months and the appellant has already suffered about 2 months and 8 days till date, therefore, learned counsel for the appellant submits that as the appellant has already undergone substantial part of imprisonment of (sic) sentence and, therefore, in the interest of justice, the sentence of imprisonment awarded to him may be reduced to the imprisonment already undergone by him. 4. I have carefully gone through the rival submissions made at the bar. 5. The accused was arrested on 8.4.2003. He was released on 3.5.2003. Thereafter, he again appeared before the trial court on 7.11.2003 and released, he was taken in custody on 7.2.2004 and till date he is in custody. The period already undergone by him is about 2 months and 8-9 days. The appellant has substantially undergone the sentence of imprisonment awarded to him. The appellant has suffered trial and major portion of sentence of imprisonment awarded to him has already been suffered, by him. In the circumstances, contraband recovered from him was of small quantity, therefore, having considered the totality of the facts and circumstances of the case, I think it just and proper to reduce the sentence of imprisonment already undergone by him. 6. The appeal is partly allowed. The conviction of the appellant for offence under Section 8/21 of the NDPS Act, is maintained. 6. The appeal is partly allowed. The conviction of the appellant for offence under Section 8/21 of the NDPS Act, is maintained. Substantive sentence of imprisonment awarded to the appellant is reduced to the imprisonment already undergone by him. However, it is made clear that fine imposed by the trial court is maintained. The appellant Himmat Singh son of Puran Singh is in jail. He be set at liberty forthwith on deposit of fine, if he is not required in any other case.Appeal partly allowed. *******