Judgment : Appellant-convict Usman Shamshudeen Shekh, hereinafter referred to as the accused, has assailed the judgment dated 17.11.2012, passed by the learned Special Judge, Shimla, in Sessions Trial No.18- S/7 of 2012, titled as State of Himachal Pradesh v. Usman Shamshudeen Shekh, whereby he stands convicted of the offence punishable under the Whether reporters of the local papers may be allowed to see the judgment? provisions of Section 20-61-85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for a period of twelve years and pay fine of Rs.15,00,000/-, and in default thereof to further undergo rigorous imprisonment for a period of one year. 2. It is the case of prosecution that on 2.4.2012, police party, comprising of HC Balbir Singh (PW-1), ASI Rajesh Kumar (PW-2) and SI Rupinder Kumar (PW-9) of Police Station, State CID Bharari, was on duty at Tara Devi and Shogi, in connection with detection of crime and collection of evidence. At about 6.30 p.m., at an isolated place, approximately 1 km ahead of Tara Devi, they noticed one person sitting on the parapet alongside the road. When police made enquiries, he became perplexed and tried to flee away. At that he was apprehended. On enquiry, he disclosed his name as Usman Shamshudeen Shekh, resident of Mumbai, also having his residence in District Kullu, Himachal Pradesh. On suspicion, he was sought to be searched. Vide memo (Ex.PW-1/B), he was informed of his statutory rights, on which he consented to be searched by the police party present on the spot. In the presence of ASI Rajesh Kumar (PW-2) and HC Balbir Singh (PW-1), SI Rupinder Kumar searched the accused and found packets wrapped with cello tape around his body. These packets contained Charas like substance, which upon weighment was found to be 1.9 kgs. The contraband substance was packed in a cloth and sealed with nine seals of seal impression ‘P’. Facsimile of the seal was also separately taken on a piece of cloth (Ex. PW-1/D). NCB form (Ex. PW-3/D) was filled up in triplicate. HC Balbir Singh carried Rukka (Ex. PW- 9/A), on the basis of which FIR No.8, dated 2.4.2012 (Ex.PW-1/F), for offence under the provisions of Section 20 of the Act, was registered at Police Station, CID Bharari. Accused was arrested. PW-1/D). NCB form (Ex. PW-3/D) was filled up in triplicate. HC Balbir Singh carried Rukka (Ex. PW- 9/A), on the basis of which FIR No.8, dated 2.4.2012 (Ex.PW-1/F), for offence under the provisions of Section 20 of the Act, was registered at Police Station, CID Bharari. Accused was arrested. With the completion of formalities on the spot and on return of the police the contraband substance was produced before ASI Veena (PW-4), the officiating SHO, who resealed the same with three seals of seal impression ‘K’, sample of which was also separately drawn on a piece of cloth (Ex.PW- 4/A). Thereafter, the case property was deposited in the Malkhana by MHC Bhagirath (PW-3), who, after making entries in the record, sent the same, through Constable Joginder Singh (PW-6), for chemical analysis to the Forensic Science Laboratory, Junga. Report of the expert (Ex.PX) was obtained and taken on record by the police. Also, Special Report (Ex. PW-5/A) sent to the superior Officer was received by HC Pardeep Kumar (PW-5). With the completion of investigation, which, prima facie, revealed complicity of the accused in the alleged crime, challan was presented by SI Krishan Chand (PW-7) in the Court for trial. 3. Accused was charged for having committed offence(s), punishable under the provisions of Section 20-61-85 of the Act, to which he did not plead guilty and claimed trial. 4. In order to establish its case, prosecution examined as many as nine witnesses and the statement of the accused, under the provisions of Section 313 of the Code of Criminal Procedure, was also recorded, in which he pleaded innocence and false implication. 5. Based on the testimonies of witnesses and the material on record, trial Court convicted the accused of the charged offence and sentenced him as aforesaid. Hence, the present appeal by the accused. 6. We have heard Mr. Anoop Chitkara, Advocate, on behalf of the accused, as also Mr. V.S. Chauhan, learned Additional Advocate General, on behalf of the State. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. 7. Assailing the judgment, Mr. Anoop Chitkara, learned counsel for the appellant, has made the following submissions: (a) While convicting the accused, Court below erred in relying upon the uninspiring testimonies of the police officials. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. 7. Assailing the judgment, Mr. Anoop Chitkara, learned counsel for the appellant, has made the following submissions: (a) While convicting the accused, Court below erred in relying upon the uninspiring testimonies of the police officials. (b) In the absence of association of independent witnesses, serious doubt is cast upon the factum of recovery of the contraband substance from the conscious possession of the accused. (c) In the alternative and in any event, sentence of imprisonment and fine so imposed is on the higher side. 8. Learned Additional Advocate General has supported the judgment of conviction and sentence, for the reasons so assigned therein. 9. Undoubtedly, no independent witness has been associated by the police, in carrying out the search and seizure operations. The issue as to whether in every case, and under the all circumstances, police must associate independent witnesses, while carrying out search and seizure operations, is no longer res integra. 10. From the testimonies of HC Balbir Singh (PW-1), ASI Rajesh Kumar (PW-2) and SI Rupinder Kumar (PW-9), the police officials, who carried out search and seizure operations on the spot, we find that the place where the accused was apprehended and searched, was not only secluded, but also the police party, who were in plain clothes, made serious attempt of associating independent witnesses. They signaled the vehicles, which were passing by, but none stopped. The spot is covered by forest from all sides and none else was available there. This has come in the uncontroverted testimony of the police officials. Consequently, the reason for non-association of independent witnesses stands sufficiently explained by the prosecution. Also, police party did not have any vehicle. They were on foot and Tara Devi, the nearest inhabited place, was at a walking distance of 15-20 minutes. The witnesses have also deposed that the accused, who disclosed himself to be a resident of Mumbai, tried to flee away from the spot. Hence none could have been spared to call a witness from Tara Devi. In this backdrop, non-association of independent witnesses, reason whereof stands sufficiently explained, cannot be a factor rendering the prosecution case to be fatal. Thus, the prosecution case solely rests upon the testimonies of the police officials. 11. Hence none could have been spared to call a witness from Tara Devi. In this backdrop, non-association of independent witnesses, reason whereof stands sufficiently explained, cannot be a factor rendering the prosecution case to be fatal. Thus, the prosecution case solely rests upon the testimonies of the police officials. 11. It is a settled proposition of law that sole testimony of police official, which if otherwise is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidence, cannot be discarded only on the ground that he is a police official and may be interested in the success of the case. It cannot be stated as a rule that a police officer can or cannot be a sole eye-witness in a criminal case. It will always depend upon the facts of a given case. If the testimony of such a witness is reliable, trustworthy, cogent and if required duly corroborated by other witnesses or admissible evidences, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in success of the case. It is only when his interest in the success of the case is motivated by overzealousness to an extent of his involving innocent people; in that event, no credibility can be attached to the statement of such witness. 12. 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 applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. Rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of police administration. 13. In State of Bihar v. Basawan Singh, AIR 1958 SC 500 , a Constitutional Bench of the Hon’ble Supreme Court of India, observed as under: “If the witnesses are not accomplices, what then is their position? 13. In State of Bihar v. Basawan Singh, AIR 1958 SC 500 , a Constitutional Bench of the Hon’ble Supreme Court of India, observed as under: “If the witnesses are not accomplices, what then is their position? In Shiv Bahadur Singh's case (Shiv Bahadur Singh v. State of Vindhya Pradesh, 1954 SCR 1098 ) it was observed, with regard to Nagindas and Pannalal, that they were partisan witnesses who were out to entrap the appellant in that case, and it was further observed: "A perusal of the evidence ......leaves in the mind the impression that they were not witnesses whose evidence could be taken at its face value." We have taken the observations quoted above from a full report of the decision, as the authorised report does not contain the discussion with regard to evidence. It is thus clear that the decision did not lay down any universal or inflexible rule of rejection even with regard to the evidence of witnesses who may be called partisan or interested witnesses. It is plain and obvious that no such rule can be laid down; for the value of the testimony of a witness depend on diverse factors, such, as the character of the witness, to what extent and in what manner he is interested, how he has fared in cross-examination etc. There is no doubt that the testimony of partisan or interested witnesses must be scrutinised with care and there may be cases, as in Shiv Bahadur Singh's case (Shiv Bahadur Singh v. State of Vindhya Pradesh, 1954 SCR 1098 ), where the Court will as a matter of prudence look for independent corroboration. It is wrong, however to deduce from that decision any universal or inflexible rule that the evidence of the witnesses of the raiding party must be discarded, unless independent corroboration is available.” (Emphasis supplied) 14. Wherever, evidence of a police officer, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and absence of some independent witness of the locality does not in any way affect the creditworthiness of the prosecution case. Wherever, evidence of a police officer, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and absence of some independent witness of the locality does not in any way affect the creditworthiness of the prosecution case. No infirmity attaches to the testimony of the police officers merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. Such reliable and trustworthy statement can form the basis of conviction. [Govindaraju alias Govinda v. State by Srirampuram Police Station and another, (2012) 4 SCC 722 ; Tika Ram v. State of Madhya Pradesh, (2007) 15 SCC 760; Girja Prasad v. State of M.P., (2007) 7 SCC 625 ); and Aher Raja Khima v. State of Saurashtra, AIR 1956]. 15. Apex Court in Tahir v. State (Delhi), (1996) 3 SCC 338 , dealing with a similar question, held as under:- "6. ... .In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form 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." 16. In Sama Alana Abdulla v. State of Gujarat, (1996) 1 SCC 427, the Court held that the evidence of police witnesses cannot be rejected on the ground that they are police witnesses and were members of the raiding party. Also, the Court held that evidence of police officer cannot be discarded merely because he is police official, in absence of hostility to the accused. 17. Also, the Court held that evidence of police officer cannot be discarded merely because he is police official, in absence of hostility to the accused. 17. It was further held by the Hon’ble Supreme Court of India in Ravindra Shantram Savant v. State of Maharashtra, (2002) 5 SCC 604 , that Court need not seek corroboration of evidence of the police officer who conducted search. But then, given facts have to be kept in mind. 18. In Girija Prasad (dead) by LRs v. State of M.P., (2007) 3 SC (Cri) 475, the Hon’ble Supreme Court of India, held that the presumption that people act honestly apply to police officer also. 19. In view of the aforesaid statement of law, we shall now examine the testimonies of police officials present on the spot. 20. SI Rupinder Kumar categorically states that at 6.30 p.m., when the police party comprising of Krishan Chand (PW-7), Rajesh Kumar (PW-2) and Balbir Singh (PW-1) reached at a secluded place, ahead of Tara Devi, they found the accused sitting on a parapet. On query, he replied that he was waiting for a bus. However, there was no bus stoppage at that place. When queried further, he became perplexed and tried to flee away. Thus police party nabbed him. He disclosed his name as Usman Shamshudeen Shekh, resident of Mumbai, also residing in District Kullu. Since accused could not satisfactorily explain his presence on the spot, on suspicion, he was searched. Prior thereto, effort was made to associate independent witnesses, as vehicles, which were passing by, were signalled to stop. Since none stopped and no independent witness who could be associated was available on the spot, after associating Rajesh Kumar and Balbir Singh accused was searched. Accused who was informed of his statutory rights, consented to be searched on the spot by SI Rupinder Kumar, vide Memo (Ex.PW-1/B). First, the accused searched him and only thereafter he searched the accused. He found a packet wrapped with a brown coloured cello tape around the body of the accused. On opening, yellow coloured thermocol type bag containing black coloured substance, in the shape of cakes, were recovered. On smelling, it appeared to be Charas. Similar packets were found to have been wrapped around the lower legs by the accused. He found a packet wrapped with a brown coloured cello tape around the body of the accused. On opening, yellow coloured thermocol type bag containing black coloured substance, in the shape of cakes, were recovered. On smelling, it appeared to be Charas. Similar packets were found to have been wrapped around the lower legs by the accused. Upon weighment, the entire contraband substance was found to be 1.9 kgs, which was packed in a cloth and sealed with nine seals of seal impression ’P’. Impression of the seal was separately taken on a piece of cloth (Ex.PW- 1/D). He filled up NCB form (Ex.PW-3/D) in triplicate and embossed impression seal ‘P’ thereupon. Contraband substance was taken into possession vide recovery memo (Ex.PW-1/E), which was also signed by the witnesses. Ruka (Ex.PW-9/A), so prepared by him, was sent through HC Balbir Singh, on the basis of which FIR (Ex.PW-1/F) was registered at Police Station, State CID, Bharari (Shimla). He arrested the accused and after completion of the proceedings on the spot returned to the Police Station. In the absence of any facility of lock-up at Police Station, State CID, Bharari, accused was sent to Police Station Dhalli. Information of arrest, as desired by the accused, was furnished to his friend, on mobile. Special Report (Ex.PW-5/A) so sent to the Dy.S.P. (Crimes) was received in his office by HC Pardeep Kumar (PW-5). 21. It be observed that sealed parcels (three in number) were opened in the Court. Contraband substance, the cello tape and the packets (Ex.P-1 to P- 6) recovered from the accused stand exhibited and proved on record. The witness has withstood the test of cross-examination and there is nothing in his testimony, which would render his otherwise inspiring version to be shaky or unbelievable or the witnesses unreliable and not worthy of credence. 22. We find the version of this witness to have been corroborated by HC Balbir Singh (PW-1) and ASI Rajesh Kumar (PW-2). Perusal of their testimonies only establishes that their deposition is clear, cogent and consistent with that of SI Rupinder Kumar. The witnesses have explained that it did not take much time to carry out search and seizure operations. Entire proceedings were completed within one hour. None was available who could have been associated as independent witness and the police party left the spot after approximately 2½ hours. 23. The witnesses have explained that it did not take much time to carry out search and seizure operations. Entire proceedings were completed within one hour. None was available who could have been associated as independent witness and the police party left the spot after approximately 2½ hours. 23. There are no contradictions in the version of these witnesses. In fact it is clear, consistent and cogent. Thus, in our considered view, prosecution has been able to establish, beyond reasonable doubt, the factum of recovery of Charas from the conscious possession of the accused. With the establishment of such fact, it was incumbent upon the accused to have discharged the statutory burden, which he failed to do so. Neither did he lead any evidence in defence nor did he put it in the form of suggestion to the witnesses. 24. There was no reason for the police to have falsely implicated the accused. It is not the case of the accused that police harboured any animosity resulting into false implication. He claims to be a resident of District Kullu, a far of place. His presence on the spot remained unexplained by him. 25. In the present case also, there is no enmity between the Investigating Officer and the accused. Had there been any intention of the Investigating Officer to plant the contraband substance on the accused, then he might have planted small quantity of Charas. 26. It is true that the accused is only to probablize his defence and not prove his case beyond reasonable doubt. But then, in the instant case, there is nothing on record to such effect. 27. In Dharampal Singh v. State of Punjab, (2010) 9 SCC 608 , the Hon’ble Supreme Court of India, held that the initial burden of proof of possession lies on prosecution and once it is discharged legal burden would shift on the accused. Standard of proof expected from the prosecution is to prove possession beyond all reasonable doubt but what is required to prove innocence by the accused would be preponderance of probability. Once the plea of the accused is found probable, discharge of initial burden by the prosecution will not nail him with offence. 28. Offences under the Act being more serious in nature higher degree of proof is required to convict an accused. Once the plea of the accused is found probable, discharge of initial burden by the prosecution will not nail him with offence. 28. Offences under the Act being more serious in nature higher degree of proof is required to convict an accused. It needs no emphasis that the expression possession is not capable of precise and completely logical definition of universal application in context of all the statutes. Possession is a polymorphous word and cannot be uniformly applied, it assumes different colour in different context. In the context of Section 18/20 of the Act once possession is established, the accused who claims that it was not a conscious possession has to establish it because it is within his special knowledge. Section 54 of the Act raises presumption from possession of illicit articles. 29. Act creates legal fiction and presumes the person in possession of illicit articles to have committed the offence in case he fails to account for the possession satisfactorily. Possession is a mental state and Section 35 of the Act gives statutory recognition to culpable mental state. It includes knowledge of fact. The possession, therefore, has to be understood in the context thereof and when tested on this anvil, we find that the accused has not been able to account for satisfactorily the possession of Charas. Once possession is established, the Court can presume that the accused had culpable mental state and had committed the offence. 30. In somewhat similar facts, the Hon’ble Supreme Court of India, had the occasion to consider this question in Madan Lal and another vs. State of H.P., 2003 (7) SCC 465, wherein it has been held that once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. (See also: Dehal Singh v. State of Himachal Pradesh, (2010) 3 SCC (Cri) 1139). 31. In the present case, not only possession but conscious possession has been established. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. (See also: Dehal Singh v. State of Himachal Pradesh, (2010) 3 SCC (Cri) 1139). 31. In the present case, not only possession but conscious possession has been established. It has not been shown by the accused that the possession was not conscious in the logical legal backdrop of Sections 35 and 54 of the Act. 32. It is a settled position of law that the prosecution has to prove its case beyond reasonable doubt and what is “beyond reasonable doubt”, it has been explained by the Hon’ble Supreme Court of India in Shivaji Sahabrao Bobade & another vs. State of Maharashtra, (1973) 2 SCC 793 has held that:- “6. Even at this stage we may remind ourselves of a necessary social perspectives in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary contest of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles of golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then breaks down and lose credibility with the community. The evil of acquitting a guilty person light heartedly as a learned author [ Glanville Williams in ‘Proof of Guilt’] has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted ‘persons’ and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that “a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent … …” In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. We have adopted these cautions in analysing the evidence and appraising the soundness of the contrary conclusions reached by the Courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant. In India the law has been laid down on these times long ago.” [Emphasis supplied] 33. We find the prosecution to have also corroborated its case by way of link evidence. ASI Veena categorically states that upon receipt of the Rukka, FIR was registered and the contraband substance resealed by her, by putting three seals of seal impression ‘K’. Facsimile of the seal was also proved on record. She filled up the relevant columns of the NCB form and entrusted the case property to MHC Bhagirath. 34. MHC Bhagirath has categorically deposed that so long as the property remained with him it was not tampered with. He made entries in the Malkhana Register (Ex.PW-3/A) and vide Road Certificate (Ex.PW- 3/B) sent the parcel, through Constable Joginder Singh (PW-3), for analysis. 35. Joginder Singh also states that so long as the case property remained with him it was not tampered with and he deposited the same at the Forensic Science Laboratory, Junga, on 3.4.2012. 36. Report of the Forensic Science Laboratory (Ex.PX), so taken on record by the SI Krishan Chand (PW-7), who also presented the Challan in the Court, clearly establishes the contraband substance so recovered from the accused, which was analyzed in the Laboratory, to be Charas. The NCB form, Road Certificate and the Malkhana Register clearly establish the contraband substance produced in the Court be the one which was recovered from the conscious possession of the accused. Facsimile of the seal were produced in the Court. 37. The NCB form, Road Certificate and the Malkhana Register clearly establish the contraband substance produced in the Court be the one which was recovered from the conscious possession of the accused. Facsimile of the seal were produced in the Court. 37. Reliance on a decision rendered by Hon’ble the Supreme Court of India, in State of Punjab v. Partap Singh, 2004 Drugs Cases (Narcotics) 104, is misconceived, for the apex Court was dealing with a case where the Courts below concurrently held the prosecution to have violated Section 50 of the Act and non-association of independent witnesses, despite availability in the vicinity, was an additional fact, which weighed with the Bench in not interfering with the view taken by the Courts. 38. From the material placed on record, it stands established by the prosecution witnesses that the accused is guilty of having committed the offence charged for. There is sufficient, convincing, cogent and reliable evidence on record to this effect. The circumstances stand conclusively proved by unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the accused stands proved beyond reasonable doubt to the hilt. The chain of events stand conclusively established and lead only to one conclusion, i.e. guilt of the accused. Circumstances when cumulatively considered fully establish completion of chain of events, indicating the guilt of the accused and no other hypothesis other than the same. It cannot be said that accused is innocent or not guilty or that he has been falsely implicated or that his defence is probable or that the evidence led by the prosecution is inconsistent, unreliable, untrustworthy and unbelievable. It cannot be said that the version narrated by the witnesses in Court is in a parrot-like manner and hence is to be disbelieved. 39. Thus, the prosecution has been able to establish the charge against the accused, beyond reasonable doubt. Findings returned by the Court below cannot be said to be perverse, illegal, erroneous or based on incorrect or incomplete appreciation of evidence, oral or documentary, so proved on record by the prosecution. 40. In our considered view, prosecution has been able to establish the guilt of the accused, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence. 41. For all the aforesaid reasons, we find no reason to interfere with the findings returned by the trial Court. 40. In our considered view, prosecution has been able to establish the guilt of the accused, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence. 41. For all the aforesaid reasons, we find no reason to interfere with the findings returned by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and/or in complete appreciation of the material so placed on record by the parties. 42. However we are in agreement with learned counsel for the accused that the sentence so imposed by the Court below is harsh and on the higher side. Contraband substance, so recovered was of commercial quantity weighing 1.9 kgs. The accused cannot be said to be a man of means. It is his first offence. We notice that both before the trial Court as also this Court, he stands represented by a Legal Aid Counsel, who undoubtedly have put in their best efforts. 43. The Hon’ble Supreme Court of India in Shahejadkhan Mahebubkhan Pathan v. State of Gujarat, (2013) 1 SCC 570 , has held as under: “12. It is clear and reiterated that the term of imprisonment in default of payment of fine is not a sentence. To put it clear, it is a penalty which a person incurs on account of nonpayment of fine. On the other hand, if sentence is imposed, undoubtedly, an offender must undergo unless it is modified or varied in part or whole in the judicial proceedings. However, the imprisonment ordered in default of payment of fine stands on a different footing. When such default sentence is imposed, a person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. Accordingly, he can always avoid to undergo imprisonment in default of payment of fine by paying such an amount. In such circumstance, we are of the view that it is the duty of the Court to keep in view the nature of offence, circumstances in which it was committed, the position of the offender and other relevant considerations such as pecuniary circumstances of the accused person as to character and magnitude of the offence before ordering the offender to suffer imprisonment in default of payment of fine. The provisions of Sections 63 to 70 of IPC make it clear that an amount of fine should not be harsh or excessive. We also reiterate that where a substantial term of imprisonment is inflicted, an excessive fine should not be imposed except in exceptional cases.” Similar view was taken by the apex Court in Shanti Lal v. State of H.P., 2007 (11) SCC 243 . 44. It has not come on record that accused is a kingpin, regularly indulging in the trade of manufacture, supply or sale of narcotic substance. 45. While taking note of overall attending circumstances, we reduce the sentence of rigorous imprisonment, so imposed by the trial Court, from 12 years to ten years, being the minimum sentence so prescribed under the Act for an offence of this nature and also reduce the amount of fine from Rs.15,00,000/- (fifteen lacs), so imposed by the trial Court, to Rs.1,00,000/- (one lac). We direct that in the event of default in the payment of fine, the accused shall further undergo rigorous imprisonment for a period of one year. Hence, only with modification in the sentence part of judgment of the trial Court, the appeal stands partly allowed and disposed of accordingly, so also pending application(s), if any.