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2018 DIGILAW 374 (MP)

Pushkarraj v. State of M. P.

2018-04-03

ROHIT ARYA, S.K.AWASTHI

body2018
JUDGMENT Awasthi, J.--1. Instant criminal appeal under section 374 of Code of Criminal Procedure, 1973 (for short “The Code”) is preferred against the judgment dated 3.4.2012 passed in Sessions Trial No. 02/2008 by Special Judge (Narcotics) Neemuch, whereby appellant has been convicted for commission of offence punishable under sections 8/18(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') and sentenced to undergo 11 years R.I., and fine of Rs. 1.00 lac with default stipulation. 2. The prosecution story in short is that on 19.8.2017, Assistant Sub Inspector, Police-Station Singoli, District Neemuch, upon receiving a secret information intercepted motor cycle bearing Registration No. RJ-35-SA-1085 going towards Kota (Rajasthan) from Ratangarh. He found that appellant Pushkarraj was driving the said motorcycle. Police briefed him about the secret information. During search, total quantity of 5.50 kgs of opium was recovered from the dicky of the motorcycle. After completing necessary formalities police arrested the applicant and registered FIR at Crime No. 81/2007 under section 8/18 of 'the Act'. After due investigation, charge-sheet was filed. 3. Appellant/accused was charged for offence under section 8/18(b) of 'the Act'. He abjured his guilt and took a plea that he has been falsely implicated in the mater. During trial, the prosecution examined as many as 8 witnesses and has exhibited 47 documents in order to bring home the charges against the appellant/accused. Appellant/accused examined Vishal (DW1) and Vikram (DW2) in defence. Trial Court, on appreciation of the evidence adduced by the parties, pronounced the judgment on 03rd April, 2012 and concluded that the appellant is liable to be convicted for commission of offence and sentenced him as stated hereinabove. 4. The learned counsel for the appellant has submitted that the prosecution has failed to establish his case without reasonable doubt. It is also submitted that the mandatory provisions of sections 42(2), 50, 52(a) and 57 of 'the Act' were not properly complied with and that the trial Court has committed serious illegality in recording conviction against the appellant, thus the impugned judgment is liable to the set aside. 5. Per contra, it is submitted by the learned Public Prosecutor that trial Court on due appreciation of evidence has recorded conviction against the appellant and that the appeal deserves to be dismissed. 6. Heard learned counsel for the parties and perused the record. 5. Per contra, it is submitted by the learned Public Prosecutor that trial Court on due appreciation of evidence has recorded conviction against the appellant and that the appeal deserves to be dismissed. 6. Heard learned counsel for the parties and perused the record. Point for consideration is whether the conviction and sentence recorded by the trial Court is contrary to law and facts of the case? 7. As regards conviction recorded against the appellant for offence under section 8/18(b) of 'the Act', learned counsel for the appellant during the course of arguments, has candidly conceded that from the evidence laid down by the prosecution, it is quite clear that police, after duly complying the procedural safe guards provided in 'the Act', recovered the contraband opium from the possession of the appellant, thus, rendering made liable under section 8/18(b) of 'the Act'. On a independent scrutiny of evidence, this Court does not find any infirmity in the conclusion arrived at by the trial Court with regard to guilt of the appellant, inasmuch as on due consideration of the depositions of the prosecution witnesses and various documents exhibited during trial, it is proved beyond reasonable doubt that the appellant was found in possession of contraband and that the same was recovered from him after duly complying with all the procedural safe guards provided under 'the Act'. Hence, in the considered opinion of this Court, the trial Court has not committed any error of law or facts in holding the appellant guilt for offence under section 8/18(b) of 'the Act'. Thus no interference is called for in the findings of conviction. 8. So far as the question of sentence is concerned, it is submitted by the learned counsel for the appellant that rigorous imprisonment of 11 years is on higher side considering the fact that the minimum sentence of 10 years is stipulated under section 18(b) of 'the Act'. Learned counsel for the appellant has further submitted that the fine of Rs.1.00 lac has also been imposed upon the appellant and he has been ordered to undergo two years R.I in default of payment of fine. It is submitted that the appellant was merely a carrier of the alleged contraband and no criminal antecedents are attributed to him; his financial condition is poor and because of poverty, he is not in a position to pay heavy fine of Rs. It is submitted that the appellant was merely a carrier of the alleged contraband and no criminal antecedents are attributed to him; his financial condition is poor and because of poverty, he is not in a position to pay heavy fine of Rs. 1.00 lac imposed upon him and if he is made to suffer 2 years default imprisonment after completing substantive sentence, then serious prejudice in all likelihood will be against him as well as his family members who are sole dependent upon him. Accordingly, prayer is made for reduction of default sentence. Reliance in this connection is placed on the decision of Hon'ble apex Court, in the case of Balwinder Singh v. Commissioner of Customs and Central Exicse reported as (2005) 4 SCC 146; Shantilal v. State of M.P. reported in 2008(1) JLJ 362 = (2007)11 SCC 243 and Shahejadkhan Mahebubkhan Pathan v. State of Gujarat , reported as (2013) 1 SCC 570 . In judgment of Balwinder Singh and Shantilal (supra), wherein the Hon'ble apex Court has reduced the sentence from 14 years to 10 year, the case of accused was first offender in the case of Balwinder Singh (supra) and the quantity of contraband was more than the quantity seized in the present case. 9. Considering the law laid down by the Hon'ble apex Court in the cited two judgments, and the facts and circumstances of the case, as the appellant is the first offender and he has already suffered 10 years and 6 months jail sentence, his custodial sentence is reduced from 11 years R.I to 10 years and 6 months R.I. 10. Now coming to the next argument of appellant regarding default sentence, in lieu of the fine amount, it appears that trial Court has imposed fine of Rs.1.00 lac, which is minimum prescribed in the aforesaid offence, and in default of payment, sentence of 2 years R.I has been directed. Considering the case of Shantilal (supra), in which the Hon'ble apex Court, after considering the provisions of sections 63 to 70 of IPC, section 30 of CrPC and relying upon various precedents of Hon'ble the apex Court and High Courts also referring the commentary of Ratanlal and Dhirajlal observed in para 39 as under : “We are mindful and conscious that the present case is under the NDPS Act. section 18 quoted above provides penalty for certain offences in relation to opium poppy and opium. Minimum fine contemplated by the said provision is rupees one lac (“fine which shall not be less than one lac rupees”). It is also true that the appellant has been ordered to undergo substantive sentence of rigorous imprisonment for ten years which is minimum. It is equally true that maximum sentence imposable on the appellant is twenty years. The learned counsel for the State again is right in submitting that Clause (b) of sub-section (1) of section 30 CrPC authorises the Court to award imprisonment in default of payment of fine up to one-fourth term of imprisonment which the Court is competent to inflict as punishment for the offence. But considering the circumstances placed before us on behalf of the appellant accused that he is very poor; he is merely a carrier; he has to maintain his family; it was his first offence; because of his poverty, he could not pay the heavy amount of fine (rupees one lac) and if he is ordered to remain in jail even after the period of substantive sentence is over only because of his inability to pay fine, serious prejudice his family members who are innocent. We are, therefore, of the view that though an amount of payment of fine of rupees one lac which is minimum as specified in section 18 of the Act cannot be reduced in view of the legislative mandate, ends of justice would be met if we retain that part of the direction, but order that in default of payment of fine of rupees one lac, the appellant shall undergo rigorous imprisonment for six months instead of three years as ordered by the trial Court and confirmed by the High Court.” 11. In view of the principles laid down by the Hon'ble apex Court, we hereby reduce the custodial sentence in default of payment of fine from 2 years R.I to 6 months R.I. 12. Resultantly, the present appeal is allowed in part. In view of the principles laid down by the Hon'ble apex Court, we hereby reduce the custodial sentence in default of payment of fine from 2 years R.I to 6 months R.I. 12. Resultantly, the present appeal is allowed in part. Conviction recorded against the appellant is hereby affirmed and the substantive sentence is hereby reduced from 11 years to 10 years and 6 months R.I. Although the fine of Rs.1.00 lac is affirmed, however, the default sentence is reduced from 2 years to 6 months R.I. Accordingly, it is directed that in case of default in payment of fine, the appellant shall further undergo 6 months R.I. In case the appellant has suffered the substantive sentence as well as the default sentence, then he will be released forthwith, unless required to be detained in any other case. A copy of the judgment be sent to the trial Court along with record for information and compliance.