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2011 DIGILAW 532 (RAJ)

Nathiya v. State of Rajasthan

2011-03-10

VINEET KOTHARI

body2011
JUDGMENT 1. - Heard the learned counsels for the parties. 2. This appeal is directed against the judgment and order dated 20.2.2004 passed by the learned Special Judge, N.D.P.S. Cases, Jodhpur in Sessions Case No. 44/2002 whereby the learned trial Court has convicted and sentenced the appellant as under : Section 8/21 N.D.P.S. Act - 12 years' R.I. and a fine of Rs. 1,20,000/-, in default to further undergo 1 year and 3 months' R.I. Section 3/25 of the Arms Act - 3 years' R.I. and a fine of Rs. 5,000/-, in default to further undergo 1 month's R.I. Both the sentences have been directed to run concurrently. 3. As per the case set up by the prosecution, on 20.1.2002, Girdhar Singh, Head Constable received a Mukhbir information to the effect that Nathia and Amria had concealed heroine under the ground near Chhotoniyo Ki Dhani and had covered them by grass. On this information, SHO, Police Station, Chohtan reached the spot at about 3.0 P.M., where a person was there. He took out a plastic bag from a pit in the field. On enquiry, he disclosed his name to be Nathiya S/o Doshu Khan. On the search of the plastic bag being taken, 26 plastic packets containing heroine were recovered. On weighment, the weight of heroine was found to be 27 Kgs. and 300 gins. On the search of Nathia being taken a foreign pistol was recovered. 4. After investigation, the police filed challan against the appellant and Sodhiya and against the accused Amiriya, Mubarak and Miriya under Section 299 Cr.P.C. Thereafter the accused Amiriya was arrested and Titainba charge-sheet was filed against him. Accused Mubarak and Meera are absconding. 5. The learned trial Court framed charge for offence under Section 8/21 of the N.D.P.S. Act and 3/25 of the Arms Act against Nathiya, under Sections 8/21 and 29 of the N.D.P.S. Act against Amiriya alias Amir and under Section 8/21 of the N.D.P.S. Act against Sodhiya. 6. At the trial, the prosecution examined 14 witnesses in support of his case. The accused in his statements under Section 313 Cr.P.C. denied the allegation levelled against him and examined 2 witnesses in defence. 7. At the conclusion of the trial, the learned trial Court vide judgment and order dated 20.2.2004 while acquitting the co-accused persons Sodhiya S/o Haji Ahdi and Amiriya alias Amir, convicted and sentenced tee appellant as above. 8. The accused in his statements under Section 313 Cr.P.C. denied the allegation levelled against him and examined 2 witnesses in defence. 7. At the conclusion of the trial, the learned trial Court vide judgment and order dated 20.2.2004 while acquitting the co-accused persons Sodhiya S/o Haji Ahdi and Amiriya alias Amir, convicted and sentenced tee appellant as above. 8. The learned counsel for the appellant does not press this appeal on merits so far as conviction of the appellant for offence under Section 8/21 of the N.D.P.S. Act and Section 3/25 of the Arms Act is concerned and only argued on the point of sentence only. The learned counsel for the appellant relying upon the decision of the Hon'ble Supreme Court in the case of 2005 SCC (Cr.) 1092, Balwinder Singh v. Asstt. Commr., Customs and Central Excise and decision of this Court in the case of Meer Vize & Anr. v. Union of India, S.B. Cri. Appeal No. 249/2001 decided on 18.5.2010 prayed for reduction of sentence from 12 years to 10 years and also prayed for reduction of sentence in default of payment of fine from 1 year to 6 months. In the case of Balwinder Singh (supra), the Hon'ble Supreme Court has reduced the sentence under the N.D.P.S. Act from 14 years to 10 years. In the case of Meer Vize (supra), this Court has reduced the sentence from 20 years to 12 years under Sections 8/21, 8/23 and 8/29 of the N.D.P.S. Act and sentence in default of payment of fine has been reduced from 21/2 years. to 1 year's R.I. 9. The learned Public Prosecutor does not seriously oppose this contention and prayer of the learned counsel for the appellant. 10. The appeal is thus, dismissed' as far as conviction is concerned, as not pressed. 11. Having considered the arguments of the learned counsel for the appellants on sentence part and looking to the circumstances under which the offence has been committed, in the opinion of this Court, the ends of justice will be met if the substantive sentence of imprisonment is reduced from 12 years to 10 years and the sentence in default of payment is reduced from 1 year to 6 months for offence under Section 8/21 of the N.D.P.S. Act as done in such other similar cases cited supra. 12. 12. Accordingly this appeal is partly allowed with the modification of the impugned judgment of Court below to the extent that while upholding the conviction of the accused appellant for offence under Section 8/21 of the N.D.P.S. Act and Section 3/25 of the Arms Act, the substantive sentence awarded to the accused-appellant for the offence under Section 8/21 of the N.D.P.S. is reduced from 12 years to 10 years. The sentence in default of payment of fine is also reduced from 1 year to 6 months. The accused appellant is in jail since 20.1.2002. He has served out about 9 years of sentence and he would be released after serving out the remaining part of the sentences, which would run concurrently, as awarded above.Appeal partly allowed. *******