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2006 DIGILAW 1257 (RAJ)

Aazad Nath v. State of Rajasthan

2006-04-20

N.K.JAIN

body2006
Judgment N.K. Jain, J.-Accused-appellant Aazad Nath son of Shri Chandgi Ram has preferred this criminal jail appeal through Superintendent, Central Jail, Bharatpur, challenging the Judgment and order dated 13.03.2003 of his conviction and sentence passed by the Special Judge, NDPS Cases, Gangapurcity, in Case No. 5/2003, whereby he was convicted and sentenced under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act 1985) to ten years rigorous imprisonment and a fine of Rs. 1,00,000/-in default of payment of fine, to further undergo three years rigorous imprisonment. The accused-appellant was also convicted under Section 137 of the Indian Railways Act, 1989 to six months simple imprisonment. Both the sentences were ordered to run concurrently. 2. Shri vijay Singh Shekhawat, the learned Amicus Curiae on behalf of accused-appellant, contended that Amrit Lal (PW. 3), who checked the accused-appellant in the train was not authorized to do so. There is violation of mandatory provisions of Section 42 of the Act, 1985 in the present case. Constable Inder Raj Singh has not been examined by the prosecution. The learned Amicus Curiae also contended that there is violation of Section 57 of the Act, 1985. The recovery witnesses have been declared hostile, therefore, recovery of contraband article itself is not proved in the present case. He lastly contended that the date of occurrence in the present case is 010.2001 whereas Section 18 of the Act, 1985 was amended by the Parliament by Act 9 of 2001 which came into force with effect from 010.2001. Whereby it has now been provided that where the contravention involves commercial quantity the accused shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and in any other case, with rigorous imprisonment which may extend to ten years and with fine which may extend to one lakh rupees. 3. 3. The learned Amicus Curiae contended that as per Table published vide Notification, the small quantity of the opium in Column No. 5 has been mentioned as 25 gram and the commercial quantity has been mentioned as 2.5 kilogram whereas in the present case the total contravention recovered is only 400 gram for which no minimum sentence of imprisonment is provided and maximum sentence provided is ten years whereas the accused-appellant has already remained in custody for more than four-and-half year as he is in custody since 010.2001, therefore, in the submission of the learned Counsel for the accused-appellant his sentence of imprisonment may be reduced to a period of sentence of imprisonment already undergone by the accused-appellant. He also requested to reduce the amount of fine which has been imposed by the trial Court. 4. The learned Public Prosecutor, on the other hand, contended that the learned trial Court has considered the oral and documentary evidence in the case and rightly convicted and sentenced the accused-appellant. He contended that there is no illegality or perversity in the Judgment of the trial Court, therefore, the appeal deserves to be dismissed. 5. I have considered the rival submissions and minutely scanned the impugned Judgment as well as the record of the trial Court. 6. The learned trial Court in its Judgment , impugned in this appeal, has referred and appreciated the evidence of the prosecution and came to the conclusion that the recovery of contraband in the present case is fully proved. The statements of the prosecution witnesses were referred during the course of argument and I do not find any perversity in the findings of the learned trial Court in convicting the accused-appellant. However, I find that the learned trial Court did not consider the case of the accused-appellant for the purpose of awarding sentence of imprisonment adequately, looking to the quantity of contraband i.e., 400 gram opium, recovered from the possession of the accused-appellant. Before amendment in the Act, 1985, the minimum sentence of ten years rigorous imprisonment was provided, but the Parliament itself has amended the provisions of the Act, 1985 and vide the amended Act, which came into force with effect from 010.2001, the sentence of ten years rigorous imprisonment awarded in the present case is a maximum sentence. Before amendment in the Act, 1985, the minimum sentence of ten years rigorous imprisonment was provided, but the Parliament itself has amended the provisions of the Act, 1985 and vide the amended Act, which came into force with effect from 010.2001, the sentence of ten years rigorous imprisonment awarded in the present case is a maximum sentence. The learned trial Court has not considered the effect of the amendment made in the Act, 1985 wherein three categories have been described; one is where the contravention involves small quantity as notified in the Act, 1985. Which is said to be 25 gram opium, for which maximum sentence is six months rigorous imprisonment; the second category is where the contravention involves commercial quantity for which the minimum sentence of ten years rigorous imprisonment is provided and the third category is that in any other case i.e., where contravention involves more than small but less than commercial quantity, no minimum sentence is provided and the maximum sentence has been provided as 10 years and fine which may extend to one lakh rupees. The present case is covered under the third category as the contravention involved therein is more than that of the small quantity and less than the commercial quantity, therefore, no minimum sentence is provided and accused can be convicted with rigorous imprisonment which may extend to ten years. 7. As already stated above, the contravention involved in the present case is 400 gram opium and the accused appellant has already remained in custody for about four years six months and thirteen days till now. In these circumstances I deem it fit and proper to reduce the sentence of imprisonment of the accused-appellant from ten years rigorous imprisonment and fine of Rupees one lakh to a period of four years six months and thirteen days, already undergone by the accused-appellant till now, and a fine of Rs. 10,000/-in default of payment of fine, to further undergo one months rigorous imprisonment. The accused-appellant has already undergone the sentence of imprisonment of six months awarded under Section 137 of the Indian Railways Act, 1989 and I am not inclined to interfere in the finding of the learned trial Court about conviction and sentence under Section 137 of the Indian Railways Act, 1989. 8. In view of the above discussion the appeal of the accused-appellant is partly allowed. 8. In view of the above discussion the appeal of the accused-appellant is partly allowed. The conviction of the accused-appellant under Section 8/18 of the Act, 1985 and under Section 137 of the Indian Railways Act, 1989 is maintained. The accused-appellant has already undergone the sentence of imprisonment awarded under Section 137 of the Indian Railways Act, 1989. So far as the sentence of imprisonment under Section 8/18 of the Act, 1985 is concerned, I reduce the sentence of ten years rigorous imprisonment and fine of Rs. 1,00,000/-to a period of 4 years 6 months and 13 days rigorous imprisonment, already undergone by the accused-appellant, and fine of Rs. 10,000/-in default of payment of fine to further undergo one months rigorous imprisonment. The accused-appellant is in judicial custody, therefore, he may be released forthwith on his deposit the amount of Rs. 10,000/-towards fine or on completion of one months rigorous imprisonment awarded in default of payment of fine, if his custody is not required in any other case.