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Allahabad High Court · body

2016 DIGILAW 4164 (ALL)

Munna Madheshiya v. State of U. P.

2016-12-23

PRATYUSH KUMAR

body2016
JUDGMENT Pratyush Kumar,J. The instant appeal has been filed on behalf of accused-appellant under section 374(2) Cr.P.C. against his conviction and sentence dated 23rd January 2010 passed in Special Case No. 37 of 2006 (State Vs. Munna Mathesiya), whereby he has been sentenced under section 8/20B(ii)(c) N.D.P.S. Act with rigorous imprisonment for 10 years and fine of Rs. 110000/- failing which to further undergo rigorous imprisonment of one year. Heard Shri Manu Sharma, Advocate, learned counsel appearing for the appellant and Smt. Archana Singh, Advocate, learned Additional Government Advocate for the State respondent and perused the record. The facts giving rise to the present appeal may be summarized as under: - On 28th May, 2006 at 7: 50 PM on the basis of recovery memo check FIR at Case Crime No. 608 of 2006 under section 8/20 N.D.P.S. Act was registered at P.S. Sonauli against the present appellant. According to the recovery memo a police party of P.S. Sonauli led by S.I. Sujeet Kumar Rai on the information furnished by an informer at about 5: 30 PM near Primary School within village Farendi P.S. Sonauli arrested the appellant and from his personal search 20 Kg. Nepali charas was arrested. When he confessed to be in possession to Nepali charas, he was informed about his right to give his personal search in the presence of gazetted officer but he reposed faith in the police party, he was searched and from his head one Gunny Bag was taken off and 20 packets of psychotropic substance looking like charas was recovered. After procuring a scale from the village, recovery substance was weighed which was found to be 20 Kg. Out of the charas recovered sample of 50 gm charas was taken out, thereafter, both were sealed. Recovery memo was prepared, a copy was provided to the appellant. During investigation report from the State Forensic Science Laboratory(Regional Unit), Gorakhpur was obtained which indicated the recovered item to be charas, thereafter, charge-sheet was submitted. The appellant stood for trial before the Court of Special Judge (FTC No. 3) Maharajganj he was charged and punished as above. On behalf of prosecution besides other police papers check report Ext. Ka-6, recovery memo Ext. Ka-1, memo of search under section 50 Cr.P.C., Ext. Ka-8, docket Ext. Ka-2, chemical report Ext. Ka-5 and site plan Ext. Ka-3 were filed. On behalf of prosecution besides other police papers check report Ext. Ka-6, recovery memo Ext. Ka-1, memo of search under section 50 Cr.P.C., Ext. Ka-8, docket Ext. Ka-2, chemical report Ext. Ka-5 and site plan Ext. Ka-3 were filed. In the oral evidence 5 witnesses were examined, out of these Sujeet Kumar Rai P.W.1 is the officer who led the police party, he has supported the prosecution version and proved recovery memo, Ext. Ka-1. He has also idendified the 20 packets of charas in the Court material Ext. 1 to 20 gunny bag material Ext. 21. He was re-examined again wherein he has proved the search memo Ext. Ka-8. Constable Ram Milan Yadav P.W.2 is the member of police party who had arrested the appellant on the stated date and time, he has supported the prosecution version. Head Constable Vindhyachal Singh P.W.3 is the person who informed about the arrest to Circle Officer and took specimen seal and sample. He has also stated that he took the sample to State Forensic Science Laboratory, Gorakhpur for chemical analysis. Husaini P.W.4 is the person from whom scale was procured but he did not support the prosecution version. He was declared hostile. Inspector Rang Bahadur Yadav P.W.5 is the investigating officer who gave details of the steps taken in the course of investigation, he has referred chemical examination report Ext. Ka-5, he has proved check FIR Ext. Ka-6, copy of the report of the general diary Ext. Ka-7 by way of secondary evidence, he has proved site plan Ext. Ka-3. After close of prosecution evidence statement of the appellant was recorded under section 313 Cr.P.C. wherein he has denied the facts stated by the prosecution witness and claimed that he was falsely implicated. On behalf of appellant, it has been submitted that the learned trial Judge has not appreciated the evidence in proper perspective and he is erroneously recorded the finding of guilt against the present appellant. In the alternative, it has been argued that if prosecution version is taken to be true the sample was taken only from one packet out of 20 packets, which weighed about 1 Kg. and found contents of charas to be 1 Kg of Nepali charas. The appellant has been awarded sentence of 10 years rigorous imprisonment and fine of Rs. In the alternative, it has been argued that if prosecution version is taken to be true the sample was taken only from one packet out of 20 packets, which weighed about 1 Kg. and found contents of charas to be 1 Kg of Nepali charas. The appellant has been awarded sentence of 10 years rigorous imprisonment and fine of Rs. 1,10,000/- and in default of payment of fine he is directed to undergo additional imprisonment of 1 year. Submission of learned counsel for the appellant is that if 1 packet weighed about 1 Kg. after subtracting weight of the packing material, the recovery which could be proved against the present appellant is less than 1 Kg. and sentence of imprisonment in default can be reduced not in part of the sentence. The first ground need not detain me much longer as Sujeet Kumar Rai P.W.1 and constable Ram Milan Yadav P.W.2 both members of police party, who caught the appellant and recovered contraband/narcotic substance, have fully substantiated the prosecution version. They are both witnesses of the recovery memo, their presence is natural and probable, during the cross examination nothing damaging to their testimonies could be extracted by the defence and both the police officers have no enmity with the appellant as they were posted in P.S. Sonauli and appellant is resident of police station Nautanwa for this reason they can not be said to be deposing against the present appellant for extraneous reasons. In reference to hostility of Hussaini P.W.4, I find no substance in the argument that his hostility disproves the fact that recovered of narcotic substance was weighed on the spot, this argument is rejected and I hold that on the stated date, time and place appellant was caught by the aforesaid two witnesses and from his possession a gunny bag containing 20 packets was recovered and found to be of 20 Kg, out of twenty, one packet 50 gm. substance was taken as sample which was found containing of charas, thus the prosecution has successfully proved against the appellant charge of possessing 1 Kg. contraband narcotic substance in the form of charas, thus charge under section 8/20 NDPS Act has been proved by the prosecution beyond all reasonable doubt against the appellant, his conviction is without blemish and is hereby affirmed. contraband narcotic substance in the form of charas, thus charge under section 8/20 NDPS Act has been proved by the prosecution beyond all reasonable doubt against the appellant, his conviction is without blemish and is hereby affirmed. Since more than 500 gm charas is categorized as commercial quantity the awarded sentence is in accordance with law and I find no cogent reason to interfere with the sentence, in view of law laid down in the case of Shanti Lal Vs. State of M.P. [2007(2) EFR 702] the only point which requires consideration is that the default sentence not being the part of substantive sentence may be reduced or not, the appellant has been punished with 1 year rigorous imprisonment, he has spent more than 10 years in jail, he has family to look after, he is a farmer by profession, considering the financial condition, family circumstances and the law laid down by the Hon'ble Apex Court in the case referred above, I think additional imprisonment of 3 months in place of 1 year would serve the ends of justice, hence the appeal is partly allowed, substantive sentence awarded to the appellant is hereby affirmed but sentence awarded in default of payment of fine is reduced from rigorous imprisonment of one year to rigorous imprisonment of 3 months. The impugned judgment and orders are modified to the extent indicated above. The period already undergone by the appellant would be adjusted towards his sentence in accordance with the provisions contained in section 428 Cr.P.C. The appellant shall serve out his sentence as modified by this Court. Office is directed to communicate this decision to the court concerned forthwith and to send back the lower court record.