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2013 DIGILAW 2198 (RAJ)

Bharat Singh v. State of Rajasthan

2013-12-05

MAHESH CHANDRA SHARMA

body2013
Hon'ble SHARMA, J.—This appeal has been filed against the judgment dated 12th May, 2010, passed by Special Judge (NDPS Cases), Jhalawar in Sessions Case No. 81/2007, whereby the accused appellant has been convicted for the offence under Section 8/21(B) of NDPS Act and sentenced to undergo 8 years' RI with fine of Rs. 80,000/-; and in default of payment of fine; to further undergo 1½ years additional R.I. 2. Brief facts of the case are as under: "Vridhi Chand Gurjar, SHO, Police Station, Bhawani Mandi lodged a written report on 26.4.2007. On receipt of the above report, First Information Report No. 97/2007 was lodged for the offence under Section 8/21, 29 of NDPS Act and investigation commenced. During the course of investigation, accused appellant and one co-accused Bachhu were arrested. After completion of investigation, the police filed a challan against accused appellant Bharat Singh for the offence under Section 8/21 of NDPS Act and against Bachhu for the offence under Section 8/21, 29 of NDPS Act. Thereafter charge were framed. Accused appellant denied for the same and claimed for trial. Thereafter the prosecution produced as many as 11 witnesses and exhibited some documents. The statement of accused persons were recorded under Section 313 Cr.P.C. and they produced one witness in their defence and produced document Ex.-D/1. After hearing both the sides, the learned trial court though acquitted co-accused Bachhu, but convicted the accused appellant for the offence under Section 8/21 (B) of NDPS Act and sentenced him, as indicated above, vide judgment dated 12.5.2010." 3. Against the said judgment of conviction and sentence dated 12.5.2010 passed by the trial court, this appeal has been preferred by the accused appellant. 4. Learned counsel for the appellant has contended that the findings of the trial court are against the facts and material on record. He has further contended that the trial court has not appreciated the statement of the prosecution witnesses in accordance with law. The Station House Officer has not complied with the provisions of NDPS Act. Without following the mandatory provision, he has investigated the matter. He has further drawn the attention of this Court on the statement of PW-1 Vikram Singh and PW-2 Radhey Shyam and stated that there are contradictions in the statement of prosecution witnesses. He has further contended that SHO himself conducted the search of the appellant, while there are the offices of SDM, Dy. He has further drawn the attention of this Court on the statement of PW-1 Vikram Singh and PW-2 Radhey Shyam and stated that there are contradictions in the statement of prosecution witnesses. He has further contended that SHO himself conducted the search of the appellant, while there are the offices of SDM, Dy. SP etc. available near the place of incident, where several Gazetted Officers / Magistrates are sitting and the notice under Section 50 of the NDPS Act is also not in accordance with law, hence the impugned judgment be set-aside and accused appellant be acquitted. In the alternate, he has prayed that if this Court is not going to acquit the appellant, in such circumstances, he is not challenging the conviction part of the judgment of the court below, but looking to the fact that appellant is having the children and he is a member of BPL; he is a very poor person, and the appellant has remained in confinement for about 6 years and 7 months, he is only requesting to this Court that he should be released for the period already undergone by him in confinement . He has further requested to this Court that if this Court is not releasing the appellant for the period already undergone by him in confinement as indicated above, then sentence awarded to the appellant should be reduced and if not, then in such circumstances, his request is that the sentence awarded to the appellant in default of payment of fine of Rs. 80,000/-, should be reduced from 1 ½ years to six months. 5. Learned PP appearing for the State has opposed the same. He has contended that seven cases are pending against the accused appellant and such type of person should not be benefited by allowing any of the request made by learned counsel in his argument, as indicated above hence his appeal should be dismissed. 6. I have heard learned counsel for the parties and carefully perused the relevant material on record. 7. 6. I have heard learned counsel for the parties and carefully perused the relevant material on record. 7. Looking to the facts and circumstances of the case, I do not accept the prayer made by learned counsel for the appellant to acquit the appellant or to release the appellant for the period already undergone by him in confinement or to reduce the sentence of the appellant, but looking to the fact that accused appellant is having the children and he is a member of the BPL, in my view, ends of justice would be met if the sentence awarded to the appellant to further undergo 1 ½ years' RI in default of payment of fine of Rs. 80,000/- is reduced from 1 ½ years' to one year. 8. Hence, this appeal is disposed of with the following directions: i) The conviction and sentence of the appellant is maintained. ii) The amount of fine is also maintained, but in default of payment of fine of Rs. 80,000/-, the appellant will further undero the sentence of one year RI instead of 1 ½ years' RI. 9. Impugned judgment stands modified, as indicated hereinabove.