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2010 DIGILAW 1171 (MP)

Kinna @ Nurulhuda v. State of M. P.

2010-11-23

N.K.GUPTA

body2010
JUDGMENT N.K. Gupta, J. 1. This criminal appeal is preferred by the Appellant being aggrieved by the judgment dated 15/5/2008 passed by the Special Judge under the NDPS Act, Sidhi in Special Case No. 658/2006, whereby the Appellant was convicted for commission of offence punishable under Section 20(b)(II)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the "NDPS Act, 1985") and sentenced to rigorous imprisonment for five years with fine of Rs. 15,000/-, in default of payment of fine amount, an additional RI for six months. 2. Prosecution case, in short, is that on 8/12/2006 the Station Officer of Police Station Kamarji District Sidhi received information from the Mukhabir to the effect that the accused-Appellant was taking Ganja on a motorcycle bearing registration No. MP53 BA4991. Permission was obtained from SDO(P) Churhat, but since the office of SDO (P) was 20 kms away, SHO Shri S.P. Shukla reached at the spot along with staff and force. The Appellant-accused was stopped and he was given an opportunity to get his search before any Gazetted Officer or a Magistrate. Ultimately a search was made and more than six kg Ganja was found in possession of the Appellant-accused. Two packets of sample were taken from uniformed Ganja and sealed at the spot, whereas remaining Ganja was sealed in separate packet. The Appellant/accused was arrested at the spot. The seized samples were sent for chemical analysis to the Forensic Science Laboratory. In the analysis, the seized substance was found to be Ganja. After due investigation, the challan was filed before the concerned Special Court against the Appellant-accused. 3. The Appellant-accused abjured his guilt and took a defence that he was falsely implicated by the police. He had examined Shankar (DW-1) and Ram Suresh Verma (DW-2) to be defence witnesses. 4. After considering the evidence adduced by the parties, the learned Special Judge under the NDPS Act, Sidhi has found the Appellant-accused guilty for commission of offence punishable under Section 20(b)(II)(B) of the NDPS Act, 1985 and inflicted the aforesaid sentence. 5. I have heard learned Counsel for the parties. 6. Learned Counsel for the Appellant submits that the Appellant-accused is in custody since 8/12/2006, therefore he has undergone in the custody for four years approximately, hence looking to the custody period the Appellant does not want to challenge his conviction, but prays for reduction of his jail sentence and fine amount. I have heard learned Counsel for the parties. 6. Learned Counsel for the Appellant submits that the Appellant-accused is in custody since 8/12/2006, therefore he has undergone in the custody for four years approximately, hence looking to the custody period the Appellant does not want to challenge his conviction, but prays for reduction of his jail sentence and fine amount. 7. Since conviction is not challenged by the Appellant-accused, therefore there is no need to consider the matter on merits. Learned Counsel for the Appellant-accused has placed his reliance on the judgment of the Hon'ble Apex Court in the case of Ghasita Sahu v. State of MP AIR 2008 SC 1425 , in which the Hon'ble Apex Court found that the Ganja seized was of the medium quantity and it was less than the commercial quantity and the accused was a middle aged person, who has poor back-ground. He was in jail for four years since arrest, therefore his sentence was reduced for a period which he had already undergone and the fine amount was also reduced from Rs. 20,000/-to Rs. 10,000/-. 8. In the light of the above judgment, the case of the Appellant-accused is considered, then it is clear that the Appellant-accused is also a middle aged person, who has poor back-ground. He did not have any criminal past. The Ganja seized from him is of medium quantity. He remained in custody for a period of 3 years and 11 months approximately, therefore looking to the similar facts and circumstances of the case, in the light of the judgment of the Hon'ble Apex Court in the case of Ghasita Sahu (supra), it would be proper to reduce the jail sentence as well as fine amount of the Appellant-accused. 9. On the basis of aforesaid discussion, the appeal of the present Appellant is partly allowed. The conviction of the Appellant under Section of the NDPS Act, 1985 is hereby maintained, but his sentence is reduced to the period which he has already undergone in the custody. The fine amount is also reduced from Rs. 15,000/-to Rs. 5,000/-and in default of payment of fine amount, the accused-Appellant would undergo rigorous imprisonment for a further period of three months. 10. At present the Appellant is in custody, and therefore an appropriate warrant be issued against the Appellant-accused after modification of the sentence.