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2006 DIGILAW 1486 (RAJ)

Dulichand v. State of Rajasthan

2006-05-04

N.K.JAIN

body2006
Judgment N.K. Jain, J.-Learned Counsel for the accused-appellant, Shri Rajendra Yadav, at the very outset, contended that there is sufficient evidence available on the record to connect accused-appellant Dulichand S/o Shri Mangilal with the Crime, therefore, he does not want to press this criminal appeal on merits and confined his arguments only in respect of reduction of sentence of imprisonment already undergone by the accused-appellant. 2. Complainant Naranjan Guru, Inspector, Office of Deputy Narcotics Commissioner, Kota, lodged a written report on 212.2001, about recovery of contraband opium weighing 850 gram from the possession of the accused-appellant. The learned trial Court conducted trial and after considering oral and documentary evidence available on the record convicted and sentenced the accused-appellant under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act of 1985) 3. Learned Counsel for the accused-appellant, for the purpose of reduction of sentence of imprisonment and fine, contended that the learned trial Court committed a serious illegality in passing the order of sentence of ten years rigorous imprisonment by mentioning that the sentence, of ten years rigorous imprisonment is the minimum sentence, whereas the parliament has amended the provisions of the Act of 1985, and issued a Notification dated 110.2001, in exercise of power conferred by Clauses (viia) and (xxiiia) of Section 2 of the Act of 1985. The said amendment came into force with effect from 010.2001 and as per Notification the commercial quantity of opium is prescribed as 2.5 kg and minimum sentence of ten years rigorous imprisonment is provided whereas in the present case the contraband article was only 850 gram, for which no minimum sentence is prescribed and the upper limit of the sentence is ten years rigorous imprisonment. He contended that perhaps the learned Counsel appearing in the trial Court on behalf of the accused-appellant did not bring, the amendment in the Act, 1985, to the notice of the learned trial Court, therefore, his submission is that looking to the quantity of the contraband recovered from the accused-appellant the sentence of imprisonment may be reduced to the period of sentence of imprisonment already undergone by the accused-appellant. 4. 4. Learned Counsel for the State does not dispute that the provisions of the Act of 1985 were amended by the parliament vide Act No. 9 of 2001, which came into force with effect from 010.2001 and as per the amended provisions where the contraband involved in lesser quantity than the commercial quantity then no minimum sentence of imprisonment is prescribed and the maximum sentence has been prescribed as ten years rigorous imprisonment and fine which may extend to the one lac rupees. He does not dispute that the commercial quantity of opium is prescribed as 2.5 kg. 5. I have considered the rival submissions and minutely scanned the impugned Judgment as well as the record of the trial Court and also the provisions of the Act of 9 of 2001. Section 41 of the NDPS (Amendment) Act, 2001 prescribes that notwithstanding anything contained in Sub-section (2) of Section 1, all cases pending before the Courts or under investigation at the commencement of this Act shall be disposed of in accordance with the provisions of the principal Act as amended by this Act and accordingly, any person found guilty of any offence punishable under the principal Act, as it stood immediately before such commencement, shall be liable for a punishment which is lesser than the punishment for which he is otherwise liable at the date of the commission of such offence. 6. There is no dispute that the incident in the present case took place after the amendment in the Act of 1985 came into force with effect from 010.2001. 7. On minutely examining all the facts and circumstances of the case and looking to the quantity of contraband involved in the present case, I am of the view that the sentence of imprisonment and fine awarded by the trial Court is liable to be reduced in the present case. However, I am unable to agree with the submission of the learned Counsel for the accused-appellant to reduce the sentence of imprisonment to a period of three years and four months, already undergone by the accused-appellant but in the facts and circumstances of the present case I am of the view that ends of justice will meet in case the sentence of ten years rigorous imprisonment and fine of Rs. 1,00,000/-, (in default of payment of fine, to further undergo six months additional rigorous imprisonment) awarded by the trial Court to the accused-appellant is reduced to a period of sentence of 5 years rigorous imprisonment and fine of Rs. 50,000 /-. 8. Consequently, the appeal of the accused-appellant is, partly allowed. The conviction of the accused-appellant under Section 8/18 of the Act, 1985 is maintained as the same has not been challenged by the learned Counsel for the accused-appellant. However, the sentence of ten years rigorous imprisonment and fine of Rs. 1,00,000/-, awarded to the accused-appellant by the learned trial Court is reduced to a period of sentence of 5 years rigorous imprisonment and fine of Rs. 50,000/-, and in default of payment of fine, to further undergo two months rigorous imprisonment. 9. The appeal is partly allowed as indicated above.