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2014 DIGILAW 87 (MP)

Nandu @ Anand v. State of M. P.

2014-01-16

N.K.GUPTA

body2014
JUDGMENT 1. The appellant has preferred the present appeal against the judgment dated 12.11.2010 passed by the learned Special Judge under Narcotic Drugs and Psychotropic Substance Act (in short 'NDPS Act'), Shahdol in special case No.22/2008, whereby the appellant was convicted for offence punishable under section 20 (b) (ii) (b) of NDPS Act and sentenced for 7 years rigorous imprisonment with fine of Rs.50,000/-. In default of payment of fine, further rigorous imprisonment for 6 months. 2. The prosecution's case, in short, is that, ASI Shri Rajendra Prasad Tripathi (PW 9) was posted at Police Station Amlai, District Shahdol. On 24.6.2008 when he was on patrolling duty towards Kotma road, after making entry in the Rojnamacha, Ex.P/7, he was intimated that the appellant Nandu @ Anand was having some Ganja in his cotton bag and he was transporting the same. Shri Tripathi summoned the witnesses Surendra Jain (PW 6) and Vijay Singh (PW 5) and told them about the intimation. A memo of intimation Ex.P/10 was recorded and an intimation was sent by a letter Ex.P/9 to SDOP, Dhanpuri. Since SDOP was not available in his office and there was no time to get the search warrant, therefore, ASI Shri Rajendra Prasad Tripathi along with the witnesses and Constable Shri Gulam Hussain (PW 4) and other police officers went to the way from where the appellant was expected to come. On that road, the appellant came from the opposite side after 15 to 20 minutes. He was detained and he was informed that he could get his search either by a Gazetted officer or by a Magistrate. Consent memo, Ex.P/13 and Ex.P/16 were prepared. On taking search, 1.500 kgs of Ganja was found from the appellant. Ganja was duly weighed and various memos were prepared. Two samples were taken from the seized Ganja and after sealing the entire property and samples, property was handed over to H.C. Shri Sunder Lal Tiwari (PW 2) to deposit in the Malkhana of Police Station Amlai. Thereafter, the samples were sent to Forensic Science Laboratory, Sagar with help of Constable Jevendra Singh (PW 8) on 26.6.2008. In the report of Forensic Science Laboratory, Ex.P/27, the seized substance was found to be Ganja. 3. The applicant abjured his guilt. He did not take any specific plea in the case. However, he has stated that he was falsely implicated in the matter. In the report of Forensic Science Laboratory, Ex.P/27, the seized substance was found to be Ganja. 3. The applicant abjured his guilt. He did not take any specific plea in the case. However, he has stated that he was falsely implicated in the matter. No defence evidence was adduced. 4. After considering the prosecution's evidence, the learned Special Judge convicted and sentenced the appellant as mentioned above. 5. I have heard the learned counsel for the parties. 6. The learned counsel for the appellant has submitted that the appellant is in jail and looking to his custody period, his sentence may be reduced to the period for which he remained in the custody and fine amount may also be reduced. He has placed his reliance upon the order passed by the single Judge of this Court in case of “Santosh Kori v. State of Madhya Pradesh”, [(2010) Cri.L.J. (NOC) 253 (M.P.)]. 7. Though the learned counsel for the appellant does not challenge the conviction, it is the duty of the Court to examine the evidence on merits in the appeal. ASI Shri R.P.Tripathi (PW 9) has stated about the entire procedure of seizure of 1.500 kgs of Ganja from the appellant. Out of two independent witnesses, Vijay Singh (PW 5) has turned hostile but, Surendra Jain (PW 6) has corroborated the testimony of Shri R.P.Tripathi. He did not remember the minute details of the incident but, when he was declared hostile and leading questions were asked, he informed about the minute details of the entire procedure. The testimony of Shri Tripathi is also corroborated by Constable Shri Gulam Hussain (PW 4). By considering the evidence of these three witnesses, it would be apparent that the appellant was given an opportunity to get his search from the Gazetted officer or the Magistrate. However, he gave his consent to get his search by Shri Tripathi and on search, 1.500 kgs of Ganja was found with the appellant, which was duly seized and sealed. Samples were taken and on reaching the police station, sealed samples and property were deposited in the Malkhana of the Police station and that property was kept by Head constable Shri Sunder Lal Tiwari (PW 2). Seizure took place on 24.6.2008 and samples were sent to Forensic Science Laboratory on 26.6.2008, which reached to the Forensic Science Laboratory on 27.6.2008. Samples were taken and on reaching the police station, sealed samples and property were deposited in the Malkhana of the Police station and that property was kept by Head constable Shri Sunder Lal Tiwari (PW 2). Seizure took place on 24.6.2008 and samples were sent to Forensic Science Laboratory on 26.6.2008, which reached to the Forensic Science Laboratory on 27.6.2008. The Forensic Science Laboratory gave its report, Ex.P/27 on 1.7.2008 and found that the property contained in the samples was Ganja (Cannabis). 8. On the basis of the aforesaid discussion, it would be apparent that Shri Tripathi followed the various provisions of NDPS Act and Rules. There is no illegality visible by which any advantage can be given to the appellant. It was proved beyond doubt that the appellant was transporting 1.500 kgs of Ganja with him. Hence, the trial Court has rightly convicted the appellant for the aforesaid offences. 9. So far as the sentence is concerned, if someone keeps the Ganja of one kg. then, it falls in the category of small quantity and maximum sentence provided for that offence is of 6 months. However, 1.500 kgs of Ganja was found with the appellant, which was slightly higher than the small quantity and therefore, the appellant could have been sentenced for one year's rigorous imprisonment, looking to the quantity of Ganja with him. However, the learned special Judge sentenced him for 7 years rigorous imprisonment with fine of Rs.50,000/-. The appellant was the first offender and youth of 20 years of age. He remained in the custody from 25.6.2008 to 17.7.2009 and from 26.8.2010 till the date. Hence, it appears that he remained in the custody for 4 years and 4 months, whereas he could be sentenced with one year rigorous imprisonment. In case of Santosh Kori (supra), the single Bench of this Court reduced the sentence on the basis of the quantity of Ganja. Under such circumstances, looking to the custody period of the appellant, it would be proper that his sentence may be reduced to the period for which he remained in the custody and fine amount may also be reduced, so that further default sentence may not be executed against the appellant. He remained in the custody for more than the period of default sentence. 10. On the basis of the aforesaid discussion, the appeal filed by the appellant is hereby partly allowed. He remained in the custody for more than the period of default sentence. 10. On the basis of the aforesaid discussion, the appeal filed by the appellant is hereby partly allowed. His conviction for offence under section 20 (b) (ii) (b) of NDPS Act is hereby maintained but, sentence is reduced to the period for which he remained in the custody till today. Fine imposed against the appellant is also reduced from a sum of Rs.50,000/- to a sum of Rs.1,000/-. In default of payment of fine, the appellant shall remain in the custody for 10 days. 11. The appellant is in jail and therefore, the office is directed to arrange for issuance of a supersession warrant, so that the appellant may be released from the jail as early as possible, if he deposits the fine amount. 12. A copy of the order be sent to the trial Court along with its record for information and compliance.