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2013 DIGILAW 360 (HP)

BALBIR KUMAR v. STATE OF H. P.

2013-04-29

RAJIV SHARMA, SURINDER SINGH

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JUDGEMENT SURINDER SINGH, J. - 1. THE appellant has challenged the judgment of conviction and sentence passed by the learned trial Court under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 in short 'the Act' in Sessions Case No. 29 of 2004 decided on 17.2.2005 for allegedly keeping in possession 1 Kg. 100 grams of charas, whereby he has been sentenced to undergo imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- and in default of payment of fine to further undergo simple imprisonment for a period of one year. 2. PRECISELY, facts of the case, as alleged by the prosecution are that ASI Ranjit Singh was heading a police patrol party in connection with detection of crime. On 20.1.2004 at about 4.10 p.m. at Chaminu Nullah. They noticed the appellant hereinafter referred to as 'the accused' coming from the water mill side. On seeing the policy party, the accused got perplexed and tried to runaway. However, he was apprehended by the police. The accused was found trying to conceal a polythene envelope under his arm pit. Thus, getting suspicious, the polythene envelope was searched and charas in the aforesaid quantity was recovered. Two samples of 20 grams each were taken out and sealed with seal impression 'T'. Remaining bulk was also sealed with the same seal impression. NCB forms in triplicate were filled-in on the spot. Case property was taken into possession vide seizure memo Ext. PW1/A. Special report to the official superior was sent within the statutory time. Case property was re-sealed with seal impression 'R'. Specimen of said seal Ex. PW11/B was also retained by him and facsimile was also affixed on the NCB Forms. Thereafter case property was deposited in malkhana register. One of the sample parcels was sent for chemical analysis which tested positive for charas. 3. AFTER completing investigation, challan was presented in the Court for the trial of the accused. He was accordingly charge-sheeted for the offence aforesaid to which he pleaded not guilty and claimed trial. 4. TO prove its case, prosecution examined its witnesses and accused was also examined under Section 313 of the Code of Criminal Procedure. He was afforded an opportunity to lead evidence in defence, but no evidence in defence was led by him. He was accordingly charge-sheeted for the offence aforesaid to which he pleaded not guilty and claimed trial. 4. TO prove its case, prosecution examined its witnesses and accused was also examined under Section 313 of the Code of Criminal Procedure. He was afforded an opportunity to lead evidence in defence, but no evidence in defence was led by him. The learned trial Court believed the prosecution evidence thus convicted and sentenced the accused for the offence charged, as aforesaid. 5. AT this stage, the learned counsel for the accused does not dispute the conviction of the accused for the aforesaid offence, but however, he has argued that the resin in the recovered charas was 29.07%. 6. THE Act defines charas as separated resin, in whatever form, whether crude or purified obtained from cannabis plant and also includes concentrated preparation and resin known as 'hashish oil' or 'liquid hashish'. If this definition is taken into consideration, the quantity of charas comes around 300 grams in the recovered stuff and for that the sentence imposed upon the accused is too excessive. We have considered the arguments advanced by learned counsel for the accused in the light of the judgment rendered by this Court in Dharampal versus State 2007 HLJ 827 . Hence, keeping in view the quantity of charas in the recovered stuff it becomes an intermediatory quantity punishable under Section 20B which provides the sentence which may extend to 10 years and with fine which may extend only to one lac. The accused is already in jail w.e.f his arrest i.e. 20.1.2004. He has already undergone more than nine years. Therefore keeping in view the percentage of resin in the recovered stuff in the instant case, the imprisonment already undergone by the accused appears to be just and reasonable. As such while upholding the conviction, we hereby modify the sentence against the accused to the extent already undergone including default clause. Therefore, he may be released forthwith, if not required in any other case. 7. WARRANTS of release be issued by the Registry forthwith in conformity with this judgment. The appeal stands disposed of, so also the pending application(s), if any.