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2012 DIGILAW 235 (MP)

Kamal v. State of M. P.

2012-02-24

ANIL SHARMA

body2012
JUDGMENT 1. Judgment passed in this criminal appeal shall also govern the disposal of Criminal Appeal No. 1469/2010 pradeep v. State of M.P. since it has been filed against the judgment which is also impugned in this appeal. 2. Appellant has filed this appeal being aggrieved by judgment of conviction and order of sentence, dated 30.11.2010 passed in Special Case No. 11/2008 by Special Judge, NDPS Act Ratlam, M.P. thereby convicting the appellant for the offence punishable under section 8/21 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’) and sentencing him to undergo RI for 5 years with fine of Rs. 5,000/- with default stipulation. 3. The brief facts of the case are that on 29.6.2008, SHO, Alot, District Ratlam on an information received from informer, stopped the motorcycle No. MP 13 MB 8183 near Vikamgarh crossing. Motorcycle was being driven by appellant Kamal and co-accused Pradeep (appellant of Criminal Appeal No. 1469/2010) was sitting behind him on motorcycle. After completing the formalities, police seized 2 bags having 150 grams of brown sugar and 500 grams of ‘tanka’ from the towel tied on the waist of appellant Kamal and in search of accused Pradeep (appellant of Criminal Appeal No. 1469/2010), police seized 2 bags having 150 grams of brown sugar and 500 grams of ‘tanka’. After seizure of motorcycle, FIR was registered and after investigation, challan was filed. 4. Learned trial Court tried the appellant Kamal and co-accused Pradeep (appellant of criminal appeal No. 1469/2010) for the offence punishable under section 8 read with section 21 (b) of NDPS Act and convicted them for the same offence and sentenced them as mentioned in para 2 of the judgment. 5. The appellant has challenged the impugned judgment on the ground that learned trial Court erred in convicting him and failed to consider the fact that mandatory formalities lying under sections 42, 50, 52, 55 and 57 of NDPS Act have not been followed. 6. The main point for consideration in this appeal is whether learned trial Court is justified in convicting the appellant for the offence punishable under section 8 read with section 21 (b) of NDPS Act or not? 7. 6. The main point for consideration in this appeal is whether learned trial Court is justified in convicting the appellant for the offence punishable under section 8 read with section 21 (b) of NDPS Act or not? 7. On perusal of the rocord, it is clear that after receiving the information, copy of the information has been sent to the superior officers and after completing all the formalities fall under section 42 and 50 of NDPS Act, seizure proceedings has been done. Thus, there is no infirmity, irregularity or illegality in following the procedure provided under section 42 and 50 of the NDPS Act. 8. Further learned trial Court by applying the formula according to E. Michale Raj v. Intelligence Officer, Narcotics Control Bureau, 2008 SSC 235 (SC) has decided that the quantity of heroin seized from the appellant Kamal is 39.75 gram and from acccused Pradeep (appellant of Criminal Appeal No. 1469/2010) is 39.22 grams, which is more than small quantity but less than commercial quantity. In the bags containing 500 grams powder each, no brown sugar was found. 9. Learned counsel for the appellant has submitted that appellant is the first offender and he is facing trial since the year 2008 and he has already undergone jail sentence of about one and half year during trial and after passing of impugned judgment, therefore, his sentence be reduced to the sentence already undergone by him. Appellant Kamal and Pradeep (appellant of Criminal Appeal No. 1469/2010) were in custody for about 103 days during trial and are in custody since 30.11.2010 i.e. after passing of the impugned judgment till now. The total period of jail sentence undergone by the appellants come to one and half year. 10. Learned counsel for the appellant has cited the judgment of this Court in the matter of Bherulal v. State of M.P. 2004 (2) MPHT 63 in which the jail sentence of appellant from whom 200 grams of smack has been seized and who has been sentenced to undergo RI for 10 years with fine of Rs. 1,00,000/- has been reduced to the period of sentence already undergone by him. 11. Looking to the short quantity of heroin seized from the appellant, the jail sentence undergone by the appellant seems to be sufficient to meet the ends of justice. 12. In the result, appeal is allowed in part. 1,00,000/- has been reduced to the period of sentence already undergone by him. 11. Looking to the short quantity of heroin seized from the appellant, the jail sentence undergone by the appellant seems to be sufficient to meet the ends of justice. 12. In the result, appeal is allowed in part. Conviction of the appellant under section 8/21 (b) of NDPS Act is maintained but his jail sentence is reduced to the period already undergone by him and sentence of 3 months in lieu of default of payment of fine amount is also reduced to the sentence of 30 days. The appellant is in jail, he is directed to be released on deposit of fine amount.