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2012 DIGILAW 962 (MP)

Vijay Jain v. State of M. P.

2012-10-01

N.K.GUPTA

body2012
Judgment N.K. Gupta, J.;- 1. The appellant has preferred this appeal against the judgment dated 31.1.2009 passed by the Special Judge, NDPS Act, Narsinghpur in Special Case No. 47/2006 whereby the appellant was convicted for offence punishable under Section 8/21 of the Narcotics Drugs & Psychotropic Substances Act, 1985 (in short the "NDPS Act") and sentenced for 10 years rigorous imprisonment with fine of Rs. 1 lac. In default of fine one years simple imprisonment was directed. The prosecution's story in short is that on 10.12.2006 an intimation was received at Police Station, Narsinghpur that appellant Vijay Jain, who was standing before a Liquor Shop near Khairi Nala at Narsinghpur was having a big load of smack. The appellant was resident of Mandsaur District. Sub Inspector Shafiq Khan (PW 10) recorded the information in the Rojnamcha and also prepared a memo on information. He informed his higher authorities and since the appellant could disappear Shri Shafiq khan could not take any search warrant from the higher authorities. He went to the spot with the Police Force and two independent witnesses viz. Vivek (PW 4) and Sheikh Ajju (PW 3). A notice under Section 50 of the NDPS Act was given to the applicant for his search and with his consent search was taken by Sub Inspector Shafiq Khan. The applicant kept a polythene bag under his shirt in which smack powder was found. On its weighing, 1230 gms. of smack powder was available with the appellant. Various memos relating to weighing, sampling, sealing etc. was prepared and the appellant was arrested. A case was registered and the seized property was sent for forensic science analysis. A report Ex. P/23 was received from Forensic Science Laboratory that in the seized powder 14.83% diacetylmorphine (heroin) was found. A charge sheet was submitted before the Special Court NDPS Act, Narsinghpur. 2. The appellant abjured his guilt. He did not take any specific plea in the case. However, he has stated before the trial Court that he came to Narsinghpur along with one Bagdi Bai, whose husband Shankarlal, was in custody at Narsinghpur. Police Officers of Police Station, Narsinghpur released Shankarlal after taking some money but they kept the appellant without any basis. He did not take any specific plea in the case. However, he has stated before the trial Court that he came to Narsinghpur along with one Bagdi Bai, whose husband Shankarlal, was in custody at Narsinghpur. Police Officers of Police Station, Narsinghpur released Shankarlal after taking some money but they kept the appellant without any basis. It was settled that Bagdi Bai will bring some money and the appellant will be released but she did not come back and therefore, a false case was prepared against the appellant. 3. On the basis of the prosecution's evidence the learned Special Judge convicted the appellant for offence punishable under Section 8/21 of the NDPS Act and sentenced as mentioned above. 4. I have heard the learned counsel for the parties. 5. The learned counsel for the appellant submits that appellant is the first offender and quantity of smack which was found with the appellant was not of commercial quantity. The trial Court found that according to the percentage of the pure heroin the quantity obtained from the appellant should be counted as 185 gms and therefore, it was not a commercial quantity. However, the trial Court has granted the maximum sentence for that offence. The learned counsel for the appellant has placed his reliance upon the judgment of Hon'ble the Apex Court in the case of "Ghasita Sahu Vs. State of M.P." ( AIR 2008 SC 1425 ) in which Hon'ble the Apex Court reduced the sentence of the accused up to four years rigorous imprisonment whereas 17.750 kgm of Ganja was found with the accused which was of medium quantity. It is submitted that appellant is in custody since 11.12.2006 and therefore, he has completed more than five years and six months in the custody. It is prayed that the sentence of the appellant may be reduced to the period which he has already undergone in the custody. However if Court desires some fine may be imposed. 6. On the other hand the learned Panel Lawyer has submitted that sentence passed by the trial Court appears to be appropriate. 7. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it appears that the appellant does not challenge the conviction directed against him but he simply challenges the sentence granted to him. 7. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it appears that the appellant does not challenge the conviction directed against him but he simply challenges the sentence granted to him. However, the merits of the case may be perused in a consized manner. Sub Inspector Shafiq Khan appears to be a reliable witness whereas the independent witnesses Sheikh Ajju (PW 3) and Vivek Nema (PW 4) have turned hostile. However, such a huge amount of heroin could not be planted by the Police with the appellant. Testimony of Sub Inspector Shafiq Khan along with other officers of the Police Force appears to be reliable. The seized property was duly sealed and kept in the malkhana for a very short time. Property was duly transmitted to the Forensic Science Laboratory and a report was obtained which was positive. Under such circumstances, it is proved beyond doubt that 1280 gms of smack was found with the appellant and according to the percentage shown by the Forensic Science Laboratory 185 gram heroin was found with the appellant which comes within the category of medium quantity. 8. So far as the sentence is concerned the total quantity seized from the appellant was not of commercial quantity and therefore, sentence awarded to the appellant should be in proportion with the guilt. In the light of the judgment passed by Hon'ble the Apex Court in the case of Ghasita Sahu (supra). 4-6 years sentence was sufficient to the overt act done by the appellant. The maximum sentence as well as maximum fine was not required in the present case. The appellant is in custody since 11.12.2006 and looking to his custody period it would be proper to reduce his sentence to the period which he has already undergone in the custody but some fine must be imposed. Fine imposed by the trial Court appears to be excessive and therefore, fine may also be reduced to a sum of Rs. 20,000/-. 9. On the basis of the aforesaid discussion the appeal filed by the appellant is hereby partly allowed. The conviction directed against the appellant for offence punishable under Section 8/21 of the NDPS Act is hereby maintained. The sentence is reduced to the period which the appellant has already undergone in the custody. Fine is reduced from a sum of Rs. On the basis of the aforesaid discussion the appeal filed by the appellant is hereby partly allowed. The conviction directed against the appellant for offence punishable under Section 8/21 of the NDPS Act is hereby maintained. The sentence is reduced to the period which the appellant has already undergone in the custody. Fine is reduced from a sum of Rs. 1 lac to a sum of Rs. 20,000/-. In default of payment of fine the appellant shall undergo for one years rigorous imprisonment. 10. The appellant is in jail and therefore, Registry is directed to issue a supersession warrant accordingly so that appellant may be released if he deposits the fine amount. Copy of the judgment be sent to the trial Court along with its record for information and compliance.