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2011 DIGILAW 1779 (RAJ)

Gajanand v. State of Rajasthan

2011-08-23

PRASHANT KUMAR AGARWAL

body2011
Hon'ble AGARWAL, J.—Heard learned counsel for the parties. 2. The accused-appellant has preferred this appeal under Section 374 Cr.P.C. against the judgment of conviction and order of sentence dated 23.10.2010 passed by Special Judge (NDPS Cases), Chhabra, District Baran in Sessions Case No. 163/2006 whereby the appellant has been convicted for the offence under Section 8/18 of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "the Act") and has been sentenced to undergo four years rigorous imprisonment with a fine of Rs.40,000/- and in default thereof to further undergo four months rigorous imprisonment. 3. The brief relevant facts for the disposal of this appeal are that the appellant was charge-sheeted for offence under Section 8/18 of the Act on the premise that on 7.10.2006 when search was conducted by SHO, Police Station Chhipa Barod, District Baran in the presence of two independent witnesses narcotic drug opium weighing 500 grams was recovered from the possession of the appellant contained in a white polythene bag which was concealed in a bag and at the time of recovery the appellant was not having any valid license or permit. In this regard FIR No.307/2006 for offence under Section 8/18 of the Act was registered at Police Station Chhipa Barod, District Baran. To prove the charge, the prosecution produced oral as well as documentary evidence whereas the appellant in his statement under Section 313 Cr.P.C. denied the allegation and the evidence of the prosecution and specifically stated that he has been falsely implicated in the case by the reason that some altercation took place between him and some police personnels and the police personnels forcely took him from his house on 6.10.2006. The appellant produced oral evidence in his defence. The trial Court after appreciating and evaluating the evidence produced on behalf of the respective parties and hearing both of them arrived at the conclusion that contraband was recovered from the possession of the appellant without any valid license or permit. It was also concluded that compliance of every mandatory provision of the Act was made by the Recovery and Seizure Officer during investigation. Therefore, on the basis of conclusions arrived at by the learned trial Court the appellant was convicted and sentenced by the impugned judgment and order in the manner as has been stated hereinabove. Hence, the instant appeal. 4. Therefore, on the basis of conclusions arrived at by the learned trial Court the appellant was convicted and sentenced by the impugned judgment and order in the manner as has been stated hereinabove. Hence, the instant appeal. 4. Assailing the impugned judgment and order, the learned counsel for the appellant first of all submitted that in the present case due compliance of mandatory provisions of Section 50 of the Act was not made as the appellant was not informed that if he be taken to a Magistrate or Gazetted Officer for search he may be discharged forthwith if the Magistrate or the Gazetted Officer as the case may be finds that there is no reasonable ground to make search of the appellant. It was submitted that Section 50 (3) of the Act requires the Searching Officer to inform the suspect person that if at his option he be taken for search to a Magistrate or a Gazetted Officer he may be discharged forthwith if the Magistrate or the Gazetted Officer finds no reason for search being made, but in the present case no such information was given by the Searching Officer to the appellant. In this regard, it was also submitted that original notice allegedly given under Section 50 of the Act was not produced during trial and only a carbon copy was produced which was not admissible in evidence and in absence of the original notice, it cannot be held that the provisions of Section 50 of the Act were duly complied with. It was prayed on behalf of the appellant that non-compliance of mandatory provisions of Section 50 of the Act itself results in the acquittal of the accused. In support of his submissions, the learned counsel for the appellant has relied upon the case of Shera Ram & Ann vs. State of Rajasthan reported in 1995 (3) WLC (Raj.) 579 = RLW 1995(2) Raj. 543. 5. In my considered view the above submissions made on behalf of the appellant are liable to be rejected only on the ground that in the present case the contraband was recovered not on personal search of the appellant but the evidence available on record reveals that the recovery was made from a polythene bag which was further contained in a bag, which the appellant was carrying in his hand. It is well settled that provisions of Section 50 of the Act are applicable and are to be complied with only when contraband is to be recovered from personal search of an accused. The Hon'ble Supreme Court in the case of State of Himachal Pradesh vs. Pawan Kumar reported in 2005 Cr.L.J. (SC) 2208 has held that a bag, briefcase or container carried by a person cannot fall within the ambit of a person and in such a case Section 50 does not apply. 6. The next contention made on behalf of the appellant is to the effect that although the alleged recovery was made in the morning at a public place but even then no efforts were made by the Searching Officer to associate independent witnesses in the process of search and recovery and two police personnels, who were members of the raiding party, were associated as witness. It was also submitted that it cannot be believed that at a public place in the morning time no independent persons were available so as to associate them in the process. It was further contended that in absence of independent and impartial witness only on the evidence of a police officer and police personnel recovery from the possession of the appellant cannot be held proved beyond reasonable doubt. In support of his submission, learned counsel for the appellant has relied upon the case of Ritesh Chakarvarti vs. State of Madhya Pradesh reported in 2006 Cr.L.R. (SC) 777. 7. On the other hand, the learned Public Prosecutor has submitted that the evidence available on record reveals that before conducting search, the searching officer made efforts to associate independent witnesses in the process and a constable was sent to bring at least two independent witnesses, but no person was available nearby so as to associate him as witness in the process and the searching officer had no option but to associate police personnel present at the spot as independent witness. It was also submitted that the evidence of a police officer/police personnel cannot be discarded only by the reason that the witness is a police officer or police personnel and the evidence of such a witness, if believed by the Court, has the same evidentiary value as evidence of an ordinary person has. 8. It was also submitted that the evidence of a police officer/police personnel cannot be discarded only by the reason that the witness is a police officer or police personnel and the evidence of such a witness, if believed by the Court, has the same evidentiary value as evidence of an ordinary person has. 8. I have considered the submissions made on behalf of respective parties and also gone through the evidence available on record and the case law relied upon by the learned counsel for the appellant. 9. Although, it is a fact that at the time of search and seizure no independent persons were associated as witnesses, but it cannot be said that the searching and recovery officer made no efforts to associate independent persons as witnesses in the process. The evidence available on record shows that the recovery officer Shri Jodharam (PW.9) ordered in writing to the constable Ashok Kumar (PW.5) who was present with him at the spot to bring two independent witnesses so as to associate them in the process of search and recovery, but it was reported by him that no independent persons are available nearby so as to associate them in the process and upon that the recovery officer associated police personnel Shri Anil Singh (PW.10) and Pavindra Singh (PW.7) who were members of the police party. Although, in his cross-examination the recovery officer Shri Jodharam (PW.9) has admitted that near the place of recovery field of Shri Idrish is situated and nearby some shops are also situated but in his cross-examination no such suggestion was made that at the time of incident some public persons were easily available so as to associate them as independent witness in the process but no effort was made by him to that effect. In my considered view merely by the reason that near the place of incident a field and some shops are situated it cannot be presumed that independent persons were available at that time. So, it cannot be said that the recovery officer did not make any effort to associate independent person in the process of search and recovery. Apart from that, it is well settled that the evidence of a witness cannot be discarded merely by the reason that the witness is a police officer/police personnel. So, it cannot be said that the recovery officer did not make any effort to associate independent person in the process of search and recovery. Apart from that, it is well settled that the evidence of a witness cannot be discarded merely by the reason that the witness is a police officer/police personnel. Although, evidence of such a witness is to be considered more minutely, but if the Court comes to a conclusion that there is no reason to disbelieve the evidence of such a witness, the evidence of such a witness cannot be discarded merely by the reason that the witness is a police officer/police personnel and even upon the evidence of such a witness, an accused can be convicted. In the present case, the learned counsel for the appellant has failed to show any ground or reason so as to discard the evidence of the prosecution witnesses, who are police officer/police personnel. So far as the case cited on behalf of the appellant is concerned, I am of the view that being based on different fact situation, it is of no help to the appellant. The facts of the case reveal that search for recovery of contraband was made at a public place, but no attempt was made by the recovery officer to associate any independent witness in the process of search and recovery. The facts reveal that the persons, who were associated in the process, were not in any way independent persons as one of them was having a pan shop in front of the Narcotic Bureau and the other person was an auto rickshaw driver. Apart from that, the facts also reveal that the accused of that case was acquitted by the Hon'ble Supreme Court not only by the reason that independent persons were not associated in the process of search and recovery but many other short comings were also found in the evidence produced on behalf of the prosecution. Thus, the contention made on behalf of the appellant being devoid of force in the facts and circumstances of the case, is rejected. 10. Thus, the contention made on behalf of the appellant being devoid of force in the facts and circumstances of the case, is rejected. 10. It has also been submitted on behalf of the appellant that according to the prosecution itself from the recovered substance a sample of 50 grams was taken and was sent for analysis to Forensic Science Laboratory, Jaipur (FSL) whereas according to the report of FSL (Ex.P/13), the weight of the sample alongwith polythene pouch was found only 32.200 gram and the prosecution has failed to furnish any explanation for this substantial decrease in the weight of the sample allegedly sent for analysis. Learned counsel for the appellant submits that absence of any explanation for change in the weight shows that the sample of the recovered substance was tampered with and sample of some other substance was actually sent for analysis. It was further submitted that it is well settled that it is for the prosecution to prove beyond reasonable doubt that the sample was sent for analysis in an intact and sealed condition to the FSL and only then the report of FSL can be used so as to arrive at a conclusion that he recovered substance is a narcotic drug. 11. On the other hand, learned Public Prosecutor in this regard has submitted that the evidence available on record reveals that the recovered substance was in a soaked condition having moisture in it and thus there is every possibility that with the lapse of time the variation in the weight of the sample of substance was as a result of loss of moisture contents. In this regard, the learned Public Prosecutor has attracted my attention towards the note appended to the report (Ex.P/13) to the effect that variation in weight is subjected to loss of moisture contents. 12. Having considered the submissions made on behalf of the respective parties in the light of evidence available on record, I am of the firm view that it cannot be held that the sample taken from the recovered substance was tampered with and instead of the sample taken from the recovered substance, sample of some other substance was sent for analysis to the FSL. Although, there is substantial decrease in the weight of the sample as revealed by report (Ex.P/13), but the evidence available on record clearly reveals that at the time of recovery, the substance was in the form of black soaked sticky substance from which a sample of 50 gram was taken and it was packed in a polythene pouch. The recovery was made on 7.10.2006 whereas the sample was tested on 3.1.2008 about one year and three months after the recovery. In the report, the sample is described as "dark brown coloured almost solid slightly sticky substance packed in a polythene pouch". Thus, it is clear that due to lapse of time the form of the sample substantially changed and it converted into a solid slightly sticky form from the soaked sticky substance. It is to be noted that in the report (Ex.P/13) a note to this effect is appended that variation in weight is subjected to loss of moisture contents. Thus, from the evidence available on record this possibility cannot be ruled out that the decrease in the weight of the substance was due to loss of moisture content and not due to the reason that the sample was changed and instead of the sample taken from the recovered substance sample of some other substance was actually sent for analysis. In my considered view the prosecution story cannot be discarded by that reason only, but for arriving at a correct conclusion the whole evidence available on record is to be considered. For that purpose, I gone through the evidence oral as well as documentary available on record and I found that the sample taken from the recovered substance remained in the same intact and sealed condition in which it was at the time of recovery and it was sent in the same intact and sealed condition without any undue delay for analysis to the FSL. Thus, the above submission made on behalf of the appellant being not tenable is also rejected. 13. Thus, the above submission made on behalf of the appellant being not tenable is also rejected. 13. It was next contended on behalf of the appellant that it is an admitted fact that the seal allegedly used by the recovery officer to seal the packets of the samples as well as the packet of the remaining substance was neither handed over to the independent witness nor it was deposited in a sealed condition in the 'Malkhana' of the police station and the seal remained in the possession of the recovery officer himself upto the time the charge-sheet was filed in the Court and thus, there was every possibility that the seal was misused and instead of the packet of the sample taken from the recovered substance, sample of some other substance was sent for analysis to the FSL. 14. On the other hand, in this regard learned Public Prosecutor has submitted that merely because the seal used to seal the packets remained with the recovery officer does not mean that it was misused. 15. On consideration of the submissions made on behalf of the respective parties in the light of the evidence available on record and the admissions made by the recovery officer (PW.9) Shri Jodharam in his cross-examination, it cannot be held that the recovery officer in any way misused the seal and instead of the sample taken from the recovered substance, sample of some other substance was actually sent for analysis to the FSL. Although, the recovery officer in his cross-examination has admitted that the seal used to seal the packets was not handed over to any person and it remained with him upto the time of filing of charge-sheet but in his cross-examination no such suggestion was made that he misused the seal and the packet of the sample was tampered with and instead of the sample taken from the recovered substance he by misusing the seal prepared sample of other substance available with him and sent that sample for analysis to the FSL. In my considered view without putting such suggestions in the cross-examination of the witness and without affording opportunity to explain his stand to the witness in this regard, the appellant cannot be permitted to raise such a ground without there being any basis beyond it. In my considered view without putting such suggestions in the cross-examination of the witness and without affording opportunity to explain his stand to the witness in this regard, the appellant cannot be permitted to raise such a ground without there being any basis beyond it. Although, there always remains some possibility of misusing of the seal if it is kept by the recovery officer himself but mere possibility cannot take the form of reality without any foundation in the form of evidence. Although, it is expected from a recovery officer to avoid raising of any such doubt, the seal should be handed over to an independent witness in a sealed condition or it should be immediately deposited in a sealed condition in the 'Malkhana' of the police station, but even if in a case the recovery officer fails to take such a precaution, merely by that reason it cannot be held that there is every likelihood that the seal was misused and instead of the sample taken from the recovered substance sample of some other substance was sent for analysis. Thus, in the facts and circumstances of the case the above submission made on behalf of the appellant being also without any substance is rejected. 16. It was next contended on behalf of the appellant that Investigating Officer (PW.11) Shri Pukhraj Saran was not posted as SHO at the time of investigation and thus, he was not competent to undertake further investigation of the case, but this contention of the appellant is liable to be rejected only by the reason that in his examination-in-chief Shri Pukhraj Saran (PW.11) has clearly stated that on 7.10.2006 when he was posted as SHO, Police Station Kavai, investigation of this case was handed over to him. It is to be noted that no cross-examination was effected of the witness disputing the fact that at the time of investigation he was posted as SHO at Police Station, Kavai. Apart from that, it has not been explained on behalf of appellant under what provision of law it is required that investigation for an offence under the Act is to conducted only by a police officer posted as SHO at a police station. The result is that this contention of appellant is also of no substance. 17. Apart from that, it has not been explained on behalf of appellant under what provision of law it is required that investigation for an offence under the Act is to conducted only by a police officer posted as SHO at a police station. The result is that this contention of appellant is also of no substance. 17. It was next contended on behalf of the appellant that the packet of the remaining substance and also the packet of the sample received back from FSL after analysis was not produced during trial and in absence of that it cannot be held that some contraband was recovered from the possession of the appellant. In this regard, it was also contended that best evidence so as to connect the appellant to the recovered substance was the recovered substance itself and it was the duty of the prosecution to produce before the Court. In support of his submission, learned counsel for the appellant relied upon the case of Jitendra & Anr. vs. State of M.P. reported in 2004 Criminal 52 (SC). 18. On the other hand, learned Public Prosecutor in this regard submitted that the whole prosecution story cannot be discarded merely on account of failure of the prosecution to produce the recovered substance during trial. It was also contended that the case relied upon by the appellant cannot be made applicable to the facts of the present case by the reason that in that case Hon'ble Supreme Court found many other short comings apart from non-production of recovered substance before the trial Court. 19. Although, in the present case the packet of remaining substance and also the packet of sample received back from the FSL after analysis was not produced during trial for the inspection of the trial Court so as to prove the fact that the packet of the remaining substance and the packet of sample is still in a intact and sealed condition, but in my considered view in the facts and circumstances of the case mere non-production of seized substance during trial cannot result in the acquittal of the appellant. Although, the Hon'ble Supreme Court in the above case has held that the best evidence would have been the seized materials, which ought to have been produced during trial and marked as material objects, but the facts of the case reveal that the Hon'ble Apex Court did not acquit the accused of that case merely by the reason that during trial the seized substance was not produced and marked as material object. The facts of the case show that there were other several circumstances leading to the acquittal of the accused. In that case, it was noted by the Hon'ble Supreme Court that the panch witnesses turned hostile and did not support the prosecution case, the Malkhana Incharge was not produced so as to prove that the packets of the seized substance and the samples were remained in a sealed condition in 'Malkhana' from the time of their receipt to the time of their dispatch to the Forensic Science Laboratory, the Investigating Officer was not examined, no evidence was produced so as to prove that the samples sent to the FSL were taken from the substance seized from the possession of the accused and also that the accused specifically took defence to the effect that the landlady of the house from which the recovery of the contraband was allegedly made in collusion with police had lodged a false case only for evicting the accused from the house in which they were living. The Hon'ble Supreme Court in that case also noted that the letter written by the Superintendent of Police to the Director, FSL was not proved during trial and the charge-sheet filed under Section 173 Cr.P.C. mentioned that report of FSL is awaited while the fact was that the report of FSL was received before charge-sheet was filed in the Court and alongwith charge-sheet report of FSL was also produced. The Hon'ble Supreme Court in that case taking the cumulative effect of all the circumstances noted by it came to a conclusion that the material placed on record by the prosecution does not bring the charge beyond reasonable doubt. In the present case, the position is entirely different. The Hon'ble Supreme Court in that case taking the cumulative effect of all the circumstances noted by it came to a conclusion that the material placed on record by the prosecution does not bring the charge beyond reasonable doubt. In the present case, the position is entirely different. Although, the independent witnesses are police personnels, but they have completely supported the prosecution case and nothing has come out in their respective cross-examination so as to doubt veracity of the prosecution case, investigating officer of the case (PW.11) Shri Pukhraj Saran has been produced during trial, Malkhana Incharge (PW.2) Rajkumar has also been examined, there is sufficient oral as well as documentary evidence on record so as to prove that sample taken from the recovered substance was sent for analysis to the FSL and from the time the sample was taken to the time it reached to the FSL it remained in the same intact and sealed condition. The result of this discussion is that the above submission of the appellant is also devoid of any substance and is liable to be rejected. 20. It was also submitted that many material memos (Fard) allegedly prepared at the place of incident itself do not bear the signature of the appellant and no explanation has been given by the prosecution for absence of it and this clearly shows that the memoes, which do not bear the signature of the appellant, were not prepared on the spot and thus they cannot be legally used to prove the prosecution case. 21. The various memoes available on record i.e. recovery memo (Ex.P/4), arrest-memo (Ex.P/7), notice under Section 50 of the Act (Ex.P/11) and memo of impression of seal (Ex.P/9) are directly related to the process of search and recovery and were allegedly prepared at the spot itself. Among these memos only memo of impression of seal (Ex.P/9) does not bear the signature of the appellant whereas all other memoes bear the signature of the appellant. If for the sake of arguments, it is admitted that memo of impression of seal (Ex.P/9) was not prepared at the spot itself even then in my considered view, it does not adversely effect the prosecution case as the recovery memo (Ex.P/4) bears the impression of seal also which was used to seal the packet of the substance and the samples taken. The evidence available on record reveals that alongwith sealed packet of sample material documents were also sent to the FSL. The learned counsel for the appellant failed to show how absence of signature of the appellant on one or more memoes allegedly prepared at the time of seizure and recovery adversely effect the prosecution case. Thus, this submission made on behalf of the appellant is also not tenable. 22. It was also submitted that the prosecution did not produce copy of the 'Rojnamcha Aam' and log book of the vehicle so as to prove that on the date of incident the SHO, Police Station Chhipa Barod, Shri Jodharam (PW.9) alongwith police party was on petrol duty and was conducting 'Nakabandi'. 23. Although, copy of the 'Rojnamcha' and log book of the vehicle was not produced during trial but there is ample uncontroverted oral evidence available on record so as to prove that on the date of incident i.e. 7.10.2006 Shri Jodharam, SHO, Police Station Chhipa Barod, District Baran (PW.9) alongwith police party proceeded from the police station on petrol duty and when he was conducting 'Nakabandi' near a babul tree, the appellant was spotted in a suspicious condition carrying a bag in his hand. Shri Jodharam (PW.9), Shri Anil Singh (PW.10), Shri Parvinder Singh (PW.7), Shri Ashok Kumar (PW.5) and Shri Ram Sewak (PW.3) in his respective examination-in-chief very categorically has stated that on the date of incident i.e. 7.10.2006 when each of them was posted at Police Station Chhipa Barod he as a member of police party by a government jeep proceeded for general petrol duty and when the police party was on 'Nakabandi', the appellant was spotted in a suspicious condition carrying a bag in his hand. The evidence available on record also reveals that in this regard entry was made in the 'Rojnamcha Aam' maintained in the police station and charge of police station was handed over to the senior most police officer available at the police station. I find no reason to disbelieve the oral evidence available on record. The unrebutted oral evidence available on record cannot be brushed aside only by the reason that it was not corroborated by some documentary evidence. The result is that this submission is also liable to the rejected. 24. I find no reason to disbelieve the oral evidence available on record. The unrebutted oral evidence available on record cannot be brushed aside only by the reason that it was not corroborated by some documentary evidence. The result is that this submission is also liable to the rejected. 24. In the last, it was submitted that from the very beginning the defence of the appellant has been that he was falsely implicated in the case due to the reason that some altercation took place between him and some police personnel posted at Police Chowki, Bambori under the jurisdiction of Police Station, Chhipa Barod and by that enmity some police -personnel forcely took the appellant to the police station from house on 6.10.2006 and falsely implicated him in the sent case. The learned counsel for the appellant submits that each of the defence witness produced on behalf of the appellant in his respective statement has clearly stated that on the date of incident four police personnels came to the house of the appellant and forcely took him alongwith them by saying that he is required by the SHO. It was also contended that in this regard cross-examination was effected and suggestions were made to the witnesses produced on behalf of the prosecution and the appellant in his statement under Section 313 Cr.P.C. also has clearly stated that he has been falsely implicated. Learned counsel for the appellant has further submitted that an accused is not required to prove his defence beyond reasonable doubt and only to the extent of probability the defence has to be proved and in the present case the appellant has been able to prove his defence so as to make the prosecution case doubtful. 25. In my considered view, if considered in the light of the evidence available on record, the defence taken by the appellant could not be accepted. Although, during cross-examination of material witnesses produced on behalf of the prosecution suggestions were made based on the defence taken by the appellant and he in his statement under Section 313 Cr.P.C. also stated that he has been falsely implicated in resent case due to the alleged altercation, but in my view an afterthought taken as a defence during trial. The appellant failed to take this defence at the first opportunity, which was available to him when he was produced for remand before the competent court. The appellant failed to take this defence at the first opportunity, which was available to him when he was produced for remand before the competent court. The material available on record shows that the appellant was produced before the Court of Judicial Magistrate, Aatru on 8.10.2006 for police remand, but at that time he did not state before the Court that he has been falsely implicated in the present case by the reason as stated by him during trial. The appellant filed an application for bail before the trial Court on 17.11.2006 but in that application also no such ground was taken. The appellant failed to explain that if he was falsely implicated in the case only by the reason as shown by him during trial why this fact was not brought before the Court at the time of remand and also in the application filed for bail. It is true that the accused is not required to prove his defence beyond reasonable doubt and only to the extent of preponderance of probability defence is required to be proved but even than the defence taken by the accused must be of such a nature as to appeal the Court and could demolish the prosecution case. In the present case, the defence taken by the accused-appellant cannot be said of such a nature. Thus, the last contention made on behalf of the appellant is also of no substance and thus rejected. 26. To assail the judgment of conviction no other submission or contention has been made on behalf of the appellant requiring consideration by this appellate court. The contentions made on behalf of the appellant are of no substance and are liable to be rejected. The result is that the judgment of conviction passed by the trial Court does not require any interference and the appeal to that extent is, hereby, dismissed. 27. So far as the order of sentence is concerned, the learned counsel for the appellant has prayed that the quantity of contraband recovered is only 500 grams, which is far less than the commercial quantity prescribed by law for narcotic drug opium and thus, looking to the quantity recovered the sentence passed by the trial Court is excessive and it is reasonable that the appellant may be sentenced for the period of imprisonment already undergone by him. 28. 28. On the other hand, learned Public Prosecutor in this regard has submitted that although the quantity recovered is less than commercial quantity, but it cannot be said that sentence of imprisonment passed by the learned trial court is excessive or unreasonable. 29. Looking to the facts and circumstances of the case, I do not find that the sentence awarded by the learned trial Court is excessive or unreasonable. Although, the commercial quantity prescribed for the narcotic drug opium is more than 2.5 kg whereas in the present case the quantity of the opium recovered is only 500 grams, but it is to be noted that for the commercial quantity minimum imprisonment of 10 years extending upto 20 years and minimum fine of Rs.1 lac extending upto Rs.2 lacs is prescribed. If the quantity of opium recovered is more than small quantity but less than commercial quantity imprisonment upto 10 years and fine upto Rs.1 lac is prescribed, therefore, sentence of four years rigorous imprisonment and fine of Rs.40,000/- is quite reasonable and it cannot be said to be excessive. 30. Consequently, there is no merit in the appeal and the same is, hereby, dismissed.