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2005 DIGILAW 615 (RAJ)

Vinod Kumar v. State of Rajasthan

2005-02-23

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-This jail appeal is directed against the Judgment and order dt. 27.03.2003 passed by Special Judge, N.D.P.S. Act Cases, Sri Ganganagar (for short the trial Court hereinafter) in criminal case No. 6/2002, whereby the trial court convicted the appellant for the offence under Section 8/21 of the N.D.P.S. Act (for short the Act hereinafter) and sentenced him to undergo three years rigorous imprisonment and a fine of Rs. 25,000/-, in default of payment of fine further to undergo three months rigorous imprisonment. 2. I have heard learned Amicus Curiae for the appellant and the learned Public Prosecutor for the State. Perused the Judgment and order impugned. I have carefully gone through the record of the trial Court. 3. It is submitted by the learned Amicus Curiae that the appellant has already undergone the imprisonment for more than 2 years and 8 months and the contraband smack alleged to have been recovered from him was though higher than the small quantity but much less than the commercial quantity and, therefore, he submits that sentence of imprisonment may be reduced to the period already undergone by the appellant. 4. On 10.03.2002, the appellant was found in possession of 35 gms. of smack including the container. He was arrested and a notice under Section 50 of the Act had been served upon him. He opted and consented his search to be made by the Seizure Officer, PW. 10 Shri Damodar Lal Meena, S.H.O., Police Station, Jawahar Nagar, Sri Ganganagar. After usual investigation, police filed the challan agaisnt the appellant. The prosecution examined as many as 10 witnesses and produced documents Exh. P/1 to P/28. The FSL Report Exh. P/28 gave positive tests for the presence of diacetylmorphine (Heroin). From the statement of seizure officer as also the motbirs to the recovery, it appears that the recovery of the contraband smack from the appellant stands proved beyond reasonable doubt. 5. PW. 1 Amar Singh is the Malkhana Incharge. He has proved Exh. P/1. PW. 2 Sukhbir Singh is the police constable. He has stated that the sealed packet was sent to the S.P. Office and from where it was sent to the FSL, Jaipur. PW. 3 Lal Bahadur is the Constable. He has stated that PW. 10 Damodar Lal Meena gave him information given by the informant in two sets to be sent to the Superintendent of Police. PW. He has stated that the sealed packet was sent to the S.P. Office and from where it was sent to the FSL, Jaipur. PW. 3 Lal Bahadur is the Constable. He has stated that PW. 10 Damodar Lal Meena gave him information given by the informant in two sets to be sent to the Superintendent of Police. PW. 6 Balkar Singh is an independent witness and corroborated the testimony of PW. 10 Damodar Lal Meena, the seizure officer. 6. PW. 7 Avtar Singh stated that at the relevant time he was appointed as Sub-Inspector at Police Station Jawaharnagar. He went with PW. 10 Damodarlal Meena, who with the help of PW. 7, arrested the accused. The contraband smack recovered from the accused was kept in sealed cover. He has proved Exh. P/20, Exh. P/21 and Exh. P/24. He has also proved the notice under Section 50 having been served on the appellant. PW. 8 Narain Singh, PW. 9 Bhupendra Singh and PW. 10 Damodarlal Meena, Circle Inspector and S.H.O., Police Station, Jawaharnagar, the seizure officer have proved the search and seizure and also proved the service of notice under Section 50 of the Act to the accused. The prosecution has also established by a reliable evidence that after the contraband smack seized from the appellant, it remained in sealed condition with the Malkhana Incharge, from Malkhana to the Office of Superintendent of Police and onward transmission to the FSL. The police official in whose custody the sample remained in Malkhana and one who carried the sample from malkhana to Office of the Superintendent of Police and from where to FSL have stated that the sample of the article given to them remained sealed intact. There is no dispute with regard to sealing of article. The accused made statement under Section 313, CrPC. and denied the allegations, and claimed to be innocent. Be that as it may, on close scrutiny and reappreciation of the evidence as discussed above, I am of the view that the prosecution has proved the case against the appellant beyond reasonable doubt and the trial Court was justified in convicting and sentencing the appellant as noticed above. 7. Having regard to the fact that the appellant was found in possession of the smack (Heroin) weighing 35 gms. 7. Having regard to the fact that the appellant was found in possession of the smack (Heroin) weighing 35 gms. and keeping in view that in such a matter, no leniency is required to be shown to the accused, who is found in possession of such narcotic drugs and, therefore, sentence of imprisonment awarded to him appears to be just and proper, since the appellant has already undergone the imprisonment for more than 2 years and 8 months, the sentence of fine deserves to be modified. 8. Consequently, the appear filed by appellant Vinod Kumar against the conviction fails and is hereby dismissed and conviction and substantive sentence of imprisonment is maintained. However, the sentence of fine is reduced to Rs. 10,000/-, in default of payment of fine, the appellant shall further undergo fifteen days rigorous imprisonment. The application seeking suspension of sentence also stands dismissed.