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2013 DIGILAW 864 (RAJ)

Nayamat Ali and Nemu v. State of Rajasthan

2013-05-02

KANWALJIT SINGH AHLUWALIA

body2013
JUDGMENT 1. - Counsel for the parties have jointly prayed that instead of deciding application for suspension of sentence, the appeal itself be taken up for hearing as the record have been requisitioned from the trial Court and also available with this Court 2. On joint request and with consent of the counsel for the parties, appeal is taken up for hearing and final disposal. 3. Briefly stated Police party was holding a "Nakabandi in the area of Purani Abadi, Sri Ganganagar for apprehension of a motorcycle, which was stolen on 5.12.2008. At about 12.10 A.M. one person came on a Yamaha motorcycle. On the signal given by the police officials instead of stopping the motorcycle, the accused turned and ran towards Karanpur road. S.H.O. along with companion police officials, on a police jeep chased the rider on the motorcycle and apprehended him on the main road in the old resident area. After apprehension, the motorcycle rider disclosed his name as Nayamat Ali @ Neinu. It was further disclosed by the person taken into custody to the Police party that he was running away with Poppy Husk. On search, Poppy Husk was found in plastic pouches in the jacket worn by the accused. Due to night, no independent witness was available. A notice under Section 50 of the NDPS Act was served upon the accused appellant. The accused gave his consent that he be searched by the S.H.O. Thereby accused had spurned the offer to get himself searched in the presence of a Magistrate or Gazetted Officer. The jacket worn by the accused was searched twenty pouches of plastic containing Poppy Husk were recovered. The Poppy Husk recovered was weighed and found to be 2 kg. The Police party at the spot followed the procedure regarding recovery search and seizure. 4. Detailing above facts, a F.I.R. was registered, same was investigated and a report under Section 173 Cr.P.C. was submitted. 5. The appellant was tried by the Court of Special Judge NDPS Sri Ganganagar. The trial Court found appellant guilty of offence under Section 15(b) of the NDPS Act and sentenced him to undergo R.I. for 4 years and pay a fine of Rs. 10,000/- in default thereof to suffer R.I. for two months. Aggrieved against the same present appeal has been filed to assail judgment of conviction and order of sentence. 6. The trial Court found appellant guilty of offence under Section 15(b) of the NDPS Act and sentenced him to undergo R.I. for 4 years and pay a fine of Rs. 10,000/- in default thereof to suffer R.I. for two months. Aggrieved against the same present appeal has been filed to assail judgment of conviction and order of sentence. 6. Shri M.K. Garg appearing for the appellant at the outset has submitted that he will not be in a position to persuade this Court to set aside conviction of the appellant. It is submitted that except to point out discrepancies, contradictions and improvements in the testimony of the official witnesses, he has nothing more to say as proper procedure for search and seizure was followed by the Investigating Agency. However, Shri M.K. Garg during the course of arguments has also failed to point out any material contradiction and discrepancy in the evidence of the witnesses. 7. At this juncture, Shri M.K. Garg has submitted that 1 kg. of Poppy Husk constitute small quantity and more than 50 kg. of Poppy Husk constitute commercial. It is contended by the counsel that taking into consideration sentence prescribed for small quantity and commercial quantity, sentence of 4 years awarded for recovery of 2 kg. of Poppy Husk is highly excessive. It is further submitted that in the present case, occurrence pertain to year 2008 and the appellant has suffered agony of protracted trial. He further submits that appellant is sole bread earner of the family. 8. Shri A.R. Nikub appearing for the State has submitted that in case this Court uphold the conviction, he will not stand in the way of the reduction of the sentence, as same is discretion of the Court. 9. Taking into consideration the submissions advanced by counsel for the petitioner for reduction of sentence, which have been noticed above, sentence of applicant-appellant is reduced from 4 years to 1 year and 6 months, maintaining the fine and the default clause.In view of the above, S.B. Criminal Appeal No. 591/2010 stand disposed of and S.B. Criminal Misc. Bail Application No. 400/2013 has been rendered in fructuous.Appeal disposed of. *******