JUDGMENT 1. This appeal is directed against judgment dated 02-12-2010 passed by Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth 'the Act, 1985'), Korea (Baikunthpur) in Special Case No. 40/2006. By the impugned judgment, accused/appellant Ramnande has been convicted under Section 20(b) of the Act, 1985 and sentenced to undergo rigorous imprisonment for 5 years and to pay fine of Rs. 1,00,000/-, in default of payment of fine, to further undergo simple imprisonment for 1 year. 2. The case of the prosecution, in brief, is as under : On 25-11-2006, Tejnath Singh (PW-6) was posted as Assistant Sub-Inspector/Station House Officer at Police Station Patna. On that date, he received information from mukhbir that the appellant was carrying ganja for sale in Platina motorcycle from Ranai and he was going towards Patrapali. He recorded mukhbir suchna panchnama (Ex.-P/2) and also entered it into rojnamcha sanha (Ex.-P/25). He transmitted the information to Deputy Superintendent of Police, Baikunthpur vide Ex.-P/13 and also entered it into rojnamcha sanha (Ex.-P/26). Thereafter, he proceeded for further action. He stopped the appellant. On being enquired, the appellant told his name. The appellant was informed about his legal right under Section 50 of the Act, 1985. Consent of the appellant regarding search was recorded vide Ex.-P/3. Thereafter, Tejnath Singh (PW-6) searched the motorcycle bearing chassis NO. MD2DDDZZZNWE89919 and Engine No. DOM-CNG 25724 vide Ex.-P/5 in which a bag was found in the dickey. Thereafter, the bag of the appellant was searched, in which one polythin packet wrapped with paper was found. Identification of the article was conducted on the spot. Identification panch nama of the substance i.e. ganja was, prepared vide Ex.-P/6. After physical verification, it was found that the recovered article seized from the appellant was ganja. The ganja was weighed on the spot vide Ex.-P/7. The polythin packet was containing 5 kgs. of ganja out of which a sample of 100 gm. was prepared. The ganja and motorcycle were seized vide Ex.-P/9. The appellant was arrested on the spot vide Ex.:-P/10. Thereafter, Tejnath Singh (PW-6) came back to Police Station Patna and registered First Information Report (Ex.-P/18) in the police station. The property was handed over to Malkhana Moharrir for its safe custody and the action taken report was sent to the superior officer. The sample, was sent to Forensic Science Laboratory, Raipur for examination vide Ex.-P/20. Thereafter, Tejnath Singh (PW-6) came back to Police Station Patna and registered First Information Report (Ex.-P/18) in the police station. The property was handed over to Malkhana Moharrir for its safe custody and the action taken report was sent to the superior officer. The sample, was sent to Forensic Science Laboratory, Raipur for examination vide Ex.-P/20. Report (Ex.-P/22) was received therefrom, in which the test of garlja was found positive. After completion of the investigation, charge sheet was tiled against the appellant in the Court of Special Judge under the Act, 1985, Korea (Baikunthpur), who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri Shakti Raj Sinha, learned counsel for the appellant contended that the evidence led-by the prosecution lacks requisite proof required to convict the appellant under Section 20(b) of the Act, 1985. The independent witnesses did not support the case of the prosecution. There is nothing in the testimony of the investigating officer Tejnath Singh (PW-6) to show that Section 50 of the Act, 1985 is complied with. He further argued that the garlja was not sealed by the Station House Officer before handing it over to Malkhana Moharrir. The sample was sent to Forensic Science Laboratory (FSL), Raipur belatedly and there is no explanation therefor. Therefore, there is possibility of tampering of the sample. The investigating officer did not prepare seal panchnama and specimen seal was not affixed on the requisite documents. The search of the appellant was not conducted according to the provisions of the Act, 1985. Hence, the appellant deserves acquittal. 4. Shri Tarkeshwar Nande, learned Panel Lawyer appearing on behalf of the State/ respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant do not call for any interference by this Court. 5. I have heard learned counsel for the parties at length and have also perused the record of Special Case No. 40/2006. 6. Now, I shall examine whether the provision of Section 42 of the Act, 1985 has been substantially complied with or not? 7. Tejnath Singh (PW-6) deposed that on 25-11-2006 he was posted as Assistant Sub-Inspector in Police Station Patna. On that date, he received a secret information that the appellant was bringing ganja in platina motorcycle from Ranai and he was going towards Patrapali for selling the same. 7. Tejnath Singh (PW-6) deposed that on 25-11-2006 he was posted as Assistant Sub-Inspector in Police Station Patna. On that date, he received a secret information that the appellant was bringing ganja in platina motorcycle from Ranai and he was going towards Patrapali for selling the same. He further deposed that he recorded mukhbir suchna panchnama vide Ex.-P/2 and also entered it in the rojnamcha sanha vide Ex.-P/25 and its copy is Ex.-P/25C. He further deposed that the secret information was sent to Deputy Superintendent of Police, Baikunthpur vide Ex.-P/13 and to that effect entry was made in rojnamcha sanha (Ex.-P/26) and its copy is Ex.-P/26C. 8. Head Constable Umashankar Tripathi (PW-7) deposed that on 25-11-2006, he was posted as Head Constable in Police Station Patna. On that date, ASI Tejnath Singh (PW-6) received secret information that the appellant was bringing ganja in motorcycle from Ranai. He further deposed that to that effect entry was made in rojnamcha sanha (Ex.-P/25). He further deposed that the said mukhbir suchna information was sent to Deputy Superintendent of Police, Baikunthpur through Constable 182 and to that effect an entry was made in rojnamcha sanha No. 924 (Ex.-P/26) and its copy is (Ex.-P/26C). 9. Head Constable Raj Kumar Sahu (PW-1) deposed that on 25-11-2006, he was posted as Head Constable in Police Station Patna. On that date, Station House Officer Tejnath Singh (PW-6) received a secret information telephonically that the appellant was bringing ganja in motorcycle from Ranai and was going towards Patrapali for selling the same. Sunita Ekka (PW-4) deposed that on 25-11-2006 she was posted as Reader in the office of Deputy Superintendent of Police, Baikunthpur. She further deposed that she had received mukhbir suchna panchnama vide Ex.-P/13 and had acknowledged the same in Ex.-P/13. 10. Looking to the evidence of Tejnath Singh (PW-6), Head Constable Umashankar Tripathi (PW-7), Sunita Ekka (PW-4), Ex.-P/13, EX.-P/25C and Ex.-P/26C, it appears that Assistant Sub-Inspector Tejnath Singh (PW-6) received a secret information, recorded the same vide Ex.-P/2 and communicated it to the Deputy Superintendent of Police, Baikunthpur. 11. In the instant case, Assistant Sub-Inspector Tejnath Singh (PW-6) received a secret information and he recorded it and to that effect entry was entered into the rojnamcha sanha and he transmitted it to the Deputy Superintendent of Police, Baikunthpur immediately. Therefore, there was substantial compliance of provision of Section 42 of the Act, 1985. 12. 11. In the instant case, Assistant Sub-Inspector Tejnath Singh (PW-6) received a secret information and he recorded it and to that effect entry was entered into the rojnamcha sanha and he transmitted it to the Deputy Superintendent of Police, Baikunthpur immediately. Therefore, there was substantial compliance of provision of Section 42 of the Act, 1985. 12. Now, I shall examine whether provision of Section 50 of the Act, 1985 has been substantially complied with or not or whether provision of Section 50 of the Act, 1985 is mandatory in the instant case? 13. The officer, who is to search a person, is required to inform the person about his right to be searched by a nearest Gazetted Officer or by a nearest Magistrate. If the person gives his consent to be searched before a Gazetted Officer or before a Magistrate, he should, without unnecessary delay, be taken to a Gazetted Officer or a Magistrate, otherwise the search can be made by the concerned Police Officer. The requirement of law has been held to be mandatory in nature and non-compliance thereof vitiates trial. 14. Tejnath Singh (PW-6) deposed that before making search, he had given notice to the appellant. The appellant gave his consent vide Ex.-P/3. In the instant case, Tejnath Singh (PW-6) did not depose that the appellant was informed that he was entitled to be searched before a nearest Gazetted Officer or a nearest Magistrate. 15. In the instant case, Tejnath Singh (PW-6) did not produce notice under Section 50 of the Act, 1985 which could indicate that he informed the appellant that he was entitled to be searched before a nearest Gazetted Officer or a nearest Magistrate. It reveals that Tejnath Singh (PW-6) did not inform the appellant that he was entitled to be searched before a nearest Gazetted Officer or a nearest Magistrate. 16. Now, I shall examine whether non-compliance of the provision of Section 50 of the Act, 1985 is fatal to the case of the prosecution or not? 17. In Jarnail Singh Vs. State of Punjab AIR 2011 SC 964 , the Hon'ble Supreme Court observed as follows:- "12.A. ..... 16. Now, I shall examine whether non-compliance of the provision of Section 50 of the Act, 1985 is fatal to the case of the prosecution or not? 17. In Jarnail Singh Vs. State of Punjab AIR 2011 SC 964 , the Hon'ble Supreme Court observed as follows:- "12.A. ..... This Court in the case of Kalema Tumba v. State of Maharashtra, (1999) 8 SCC 257 , discussed the provisions pertaining to 'personal search' under Section 50 of the NDPS Act and held as follows : ".....if a person is carrying a bag or some other article with him and narcotic drug or psychotropic substance is found from it, it cannot be said that it was found from his person." Similarly, in the case of Megh Singh v. State of Punjab, (2003) 8 SCC 666 , this Court observed that : "A bare reading of section 50 shows that it applies in case of personal search of a person. It does not extend to a search of a vehicle or container or a bag or premises." The scope and ambit of Section 50 was also examined by this Court in the case of State of Himachal Pradesh v. Pawan Kumar, (2005) 4 SCC 350 . In paragraphs 10 and 11, this Court observed as follows : "10. We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad common-sense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the most, appropriate meaning of the word "person" appears to be - "the body of a human being as presented to public view usually with its appropriate coverings and clothing". In a civilized society, appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. Therefore, the most, appropriate meaning of the word "person" appears to be - "the body of a human being as presented to public view usually with its appropriate coverings and clothing". In a civilized society, appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear. 11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some, extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance, it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act." 18. In Madanlal and another Vs. State of Himachal Pradesh (2003) 7 SCC 465 and Megh Singh Vs. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act." 18. In Madanlal and another Vs. State of Himachal Pradesh (2003) 7 SCC 465 and Megh Singh Vs. State of Punjab (2003) 8 SCC 666 , the Hon'ble Supreme Court observed that a bare reading of Section 50 of the Act, 1985 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises. The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicle or articles. The position was settled beyond doubt by the Constitution Bench in State of Punjab Vs. Baldev Singh (1999)6 SCC 172 . 19. In State of Punjab Vs. Makhan Chand (2004) 3 SCC 453 , the Hon'ble Supreme Court held thus : “7. Apart from the aforesaid question, we are also of the view that Section 50 of the Act would not apply to a situation where the search undertaken is not of the person of the accused but of something carried in his hand. See in this connection, the observations of the Constitution Bench of this Court in Baldev Singh case [ (1999) 6 SCC 172 , the judgment of this Court in Gurbax Singh v. State of Haryana [ (2001) 3 SCC 28 : 2001 SCC (Cri) 426], SCC at pp. 30-32 (paras 4 to 8), Kalema Tumba v. State of Maharashtra [ (1999) 8 SCC 257 : 1999 SCC (Cri) 1422 and in Bharat Bhai case (2002) 8 SCC 327 : 2003 SCC (Cri) 4].” 20. In view of the above settled legal position, Section 50 of the Act, 1985 would not be applicable when search is made of a house or a vehicle or a container or a beg or premises. In the instant case, the search was made of the motorcycle, therefore, Section 50 of the Act, 1985 would not be applicable. 21. Learned counsel for the appellant argued that the evidence of investigating officer Tejnath Singh (PW-6) has not been supported by the evidence of independent witnesses. Vivekanand Pandey (PW-2), Harbansh Sahu (PW-3) and Krishnchandra (PW-8) have not supported the case of the prosecution. 21. Learned counsel for the appellant argued that the evidence of investigating officer Tejnath Singh (PW-6) has not been supported by the evidence of independent witnesses. Vivekanand Pandey (PW-2), Harbansh Sahu (PW-3) and Krishnchandra (PW-8) have not supported the case of the prosecution. Head Constable Raj Kumar Sahu (PW-1) is a police personnel and is an interested witness, therefore, the conviction of the appellant cannot be based on the evidence of police personnel. 22. In Girja Prasad (Dead) by LRs. Vs. State of M.P. (2007) 7 SCC 625 , the Hon'ble Supreme Court observed thus : “25. In our judgment, the above proposition does not lay down correct law on the point. It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of the complainant or a police official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence. 26. It is not necessary to refer to various decisions on the point. We may, however, state that before more than half a century, in Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217 , Venkatarama Ayyar, J. stated: (AIR p. 230, para 40) “40. ... The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judigial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. ... The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judigial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration.” 27. In Tahir v. State (Delhi), (1996) 3 SCC 338 , dealing with a similar question, Dr. A.S. Anand, J. (as His Lordship then was) stated : (SCC p. 341, para 6) "6. ... Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case." 23. In Karamjit Singh Vs. State (Delhi Admn.) (2003) 5 SCC 291 , the Hon'ble Supreme Court observed thus : "8. ..... The testimony of police personnel should be treated in the manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down......" 24. Tejnath Singh (PW-6) and Raj Kumar Sahu (PW-1) deposed that they proceeded for Village Ranai. The appellant met them. The appellant was stopped by them. They further deposed that motorcycle of the appellant was searched vide Ex.-P/5 in which a bag was found in the dickey. Thereafter bag of the appellant was searched, in which one polythin packet wrapped with paper was found. Identification of the article was conducted on the spot. Identification panchnama of the substance i.e. ganja was prepared vide Ex.-P/6. After physical verification, it was found that the recovered article from the appellant was ganja. The ganja was weighed on the spot vide Ex-P/7. The polythin packet was containing 5 kgs. of ganja out of which a sample of 100 gm. was prepared. Identification panchnama of the substance i.e. ganja was prepared vide Ex.-P/6. After physical verification, it was found that the recovered article from the appellant was ganja. The ganja was weighed on the spot vide Ex-P/7. The polythin packet was containing 5 kgs. of ganja out of which a sample of 100 gm. was prepared. The ganja and motorcycle were seized vide Ex.-P/9. The appellant was arrested on the spot vide Ex.-P/10. 25. Tejnath Singh (PW-6) deposed that he came back to Police Station Patna along with the appellant and the seized ganja and registered First Information Report (Ex.-P/18) in the police station. He further deposed that the property was handed over to Malkhana Moharrir for its safe custody. He further deposed that he sent the action taken report to his superior officer. 26. Head Constable Umashankar Tripathi (PW-7) deposed that he had brought Malkhana register of Police Station Patna which is Ex.-P/33 and its copy is Ex.-P/33C. He further deposed that Tejnath Singh (PW-6) handed over the seized article to him for its safe custody. He further deposed that entry of the same was made in Malkhana register by him. He further deposed that he received one sealed packet contained 4.900 kgs. of ganja, one sealed sample packet contained 100 gm. of ganja, a sum of Rs. 1140/- and a motorcycle for their safe custody. He further deposed that he received the packets in sealed condition. Ex.-P/9 is seizure memo. In Ex.-P/9 also, seal impression was affixed. 27. Looking to the evidence of Tejnath Singh (PW-6), Umashankar Tripathi (PW-7) and Ex.-P/33C, it is clear that the seized article (ganja) and the sample were sealed by Tejnath Singh (PW-6) and were handed over by him to the Malkhana Moharrir for their safe custody; 28. Tejnath Singh (PW-6) deposed that he sent the sample of the seized ganja to FSL, Raipur for chemical examination vide Ex.-P/20. Its acknowledgment is Ex.-P/21. A report (Ex.-P/22) was received therefrom vide Ex.-P/23. 29. In Ex.-P/21, it is mentioned that an article was received from Constable 182 Vikas Kashyap, Police Station Patna, Distt. Korea in sealed condition on 30-11-2006. In Ex.-P/22, it is mentioned as follows:- ^ls fpfUgr ik;s x;s RkFkk bu ij ikbZ xbZ lhysa] uewuk lhy iVuk vkmViksLV ds ln`’k ikbZ xbZ^^ 30. A report (Ex.-P/22) was received therefrom vide Ex.-P/23. 29. In Ex.-P/21, it is mentioned that an article was received from Constable 182 Vikas Kashyap, Police Station Patna, Distt. Korea in sealed condition on 30-11-2006. In Ex.-P/22, it is mentioned as follows:- ^ls fpfUgr ik;s x;s RkFkk bu ij ikbZ xbZ lhysa] uewuk lhy iVuk vkmViksLV ds ln`’k ikbZ xbZ^^ 30. It appears that the sample was taken on 25-11-2006 and the same was received in FSL, Raipur on 30-11-2006, i.e., after 5 days of the seizure. 31. In Jarnail Singh Vs. State of Punjab AIR 2011 SC 964 (supra), the Hon'ble Supreme Court observed as follows : "14. ..... The trial court as well as the High Court, on examination of the entire material, concluded that there was sufficient independent evidence produced by the prosecution regarding the completion of link evidence. Therefore, the delay in sending the sample parcel to the office of Chemical Examiner pales into insignificance. We are of the considered opinion that mere delay in sending the sample of the narcotic to the office of the Chemical Examiner would not be sufficient to conclude that the sample has been tampered with. There is sufficient evidence to indicate that the delay, if any, was wholly unintentional. This Court had occasion to deal with a similar issue, in the case of Balbir Kaur v. State of Punjab, (2009) 15 SCC 795 . The Court made the following observations: "As far as delay in sending the samples is concerned, we find the said contention untenable in law. Reference in this regard may be made to the decision of this Court in Hardip Singh case ( AIR 2009 SC 432 : 2008 AIR SCW 7514) wherein there was a gap of 40 days between seizure and sending the sample to the chemical examiner. Despite the said fact the Court held that in view of cogent evidence that opium was seized from the appellant and the seals put on the sample were intact till it was handed over to the chemical examiner, delay itself is not fatal to the prosecution case." 32. Therefore, mere delay of 5 days in sending the sample to the office of the chemical examiner would not be fatal to the case of the prosecution. The seal was found intact and it was tallied with the specimen seal. Therefore, mere delay of 5 days in sending the sample to the office of the chemical examiner would not be fatal to the case of the prosecution. The seal was found intact and it was tallied with the specimen seal. Therefore, it cannot be assumed that there was tampering of the seal of the sample. It must be presumed that the sample, which was sealed at the time of recovery, must have been sent to the FSL properly. 33. The defence has not been able to prove that the seal put on the seized article and the sample was, in any manner, tampered with before the sample was examined by the Chemical Examiner. There was mere delay of about 5 days in sending the sample to FSL, Raipur. It is not proved as to how the aforesaid delay of 5 days affected the same examination when it could not be proved that the seal of the sample was, in any manner, tampered with. In the circumstances, when the seal was found intact at the time of examination by the Chemical Examiner and the said fact was recorded by him in his report, mere delay in sending the sample to the Chemical examiner itself would not be fatal to the case of the prosecution. 34. Therefore, in the instant case, from the above, it is apparent that provisions of Sections 42, 55 and 57 of the Act, 1985 are substantially complied with. I find no infirmity in the impugned judgment of conviction passed by the learned Special Judge against the appellant. 35. Learned counsel for the appellant submitted that the appellant was in jail since 25-11-2006 to 09-01-2007 and thereafter is in jail since 02-12-2010. Hence, the appellant suffered jail sentence for about 2 years and 7 months. The quantity of seized ganja was 5 kgs. which was less than commercial quantity. The appellant was sentenced to undergo rigorous imprisonment for 5 years and to pay fine of Rs. 1,00,000/-, and default sentence of 1 years simple imprisonment was imposed. The appellant is a poor person and he has undergone more than half of the jail sentence awarded to him. The ends of justice would be met if the appellant is sentenced for the period already undergone by him, amount of fine is reduced from Rs. 1,00,000/- to Rs. 1,00,000/-, and default sentence of 1 years simple imprisonment was imposed. The appellant is a poor person and he has undergone more than half of the jail sentence awarded to him. The ends of justice would be met if the appellant is sentenced for the period already undergone by him, amount of fine is reduced from Rs. 1,00,000/- to Rs. 50,000/- and the default sentence is reduced from simple imprisonment of 1 year to simple imprisonment of 6 months. He placed reliance on Shanti Lal Vs. State of M.P. 2007 AIR SCW 6494 and Ghasita Sahu Vs. State of M.P. AIR 2008 SC 1425 . 36. In Shanti Lal 2007 AIR SCW 6494 (supra), the Hon'ble Supreme Court held in para 27of the judgment thus : "The next submission of the learned counsel for the appellant, however, has substance. The term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incur on account of non-payment of fine. The sentence is something which an offender must undergo unless it is set aside or remitted in part or in whole either in appeal or in revision or in other appropriate judicial proceedings or 'otherwise'. A term of imprisonment ordered in default of payment of fine stands on a different footing. A person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. He, therefore, can always avoid to undergo imprisonment in default of payment of fine by paying such amount. It is, therefore, not only the power, but the duty of the court to keep in view the nature of offence, circumstances under which it was committed, the position of the offender and other relevant considerations before ordering the offender to suffer imprisonment in default of payment of fine." 37. In the present case, the appellant was directed to undergo rigorous imprisonment for the period of 5 years and to pay fine of Rs. 1,00,000/-, in default, to further undergo simple imprisonment for 1 year. 38. It is apparent that the quantity of ganja was less than the commercial quantity and more than the small quantity. The weight of seized ganja was 5 kgs. The appellant was in jail since 25-11-2006 to 09-01-2007 and thereafter is in jail since 02-12-2010. 1,00,000/-, in default, to further undergo simple imprisonment for 1 year. 38. It is apparent that the quantity of ganja was less than the commercial quantity and more than the small quantity. The weight of seized ganja was 5 kgs. The appellant was in jail since 25-11-2006 to 09-01-2007 and thereafter is in jail since 02-12-2010. Hence, the appellant suffered jail sentence for about 2 years and 7 months. 39. Looking to the facts and circumstances of the case, I am of the view that the ends of justice would be met if the appellant is sentenced for the period already undergone by him, amount of fine is reduced from Rs. 1,00,000/- to Rs. 50.000/- and the default sentence is reduced from simple imprisonment of 1 year to simple imprisonment of 6 months. 40. In the result, the appeal is partly allowed. The conviction of the appellant under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 is upheld. However, the jail sentence awarded to him is reduced to the period already undergone by him, the amount of fine is reduced from Rs. 1,00,000/- to Rs. 50,000/- and the default sentence is reduced from simple imprisonment of 1 year to simple imprisonment of 6 months. Appeal Partly Allowed.