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2019 DIGILAW 2292 (RAJ)

NARAYAN v. STATE OF RAJASTHAN

2019-08-26

MANOJ KUMAR GARG

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JUDGMENT Manoj Kumar Garg, J. - Instant criminal appeal has been filed by the appellant under Section 374(2) Cr.P.C. against the judgment dated 23.06.2011 passed by learned Special Judge, N.D.P.S. Cases, Pratapgarh in Special Sessions Case No.48/2005, by which the learned Judge convicted the appellant for offence under Section 8/20 N.D.P.S. Act and sentenced him to undergo three years rigorous imprisonment along with fine of Rs. 10,000/-; in default of payment of fine to further undergo one month rigorous imprisonment. 2. Brief facts of the case are that on 09.10.2005, the S.H.O. of Arnod Police Station, Nandan Kishore Yadav, received a secret information that one Narayan planted cannabis in the garden of his house. The information was sent to the superior officers under Section 42(2) NDPS Act and the police team rushed to village Amalvadia where on seeing the police party one person came out from the Tapri (hut) and upon enquiry, he disclosed his name as Narayan S/o Vijiya Meena. The police made a search and found cannabis plants weighing 4.100 kgs. in his garden. The police seized the contraband and arrested the appellant. The police registered the FIR for offence under Section 8/20 NDPS Act and started investigation. After investigation, the police filed challan against the present appellant for offence under Section 8/20 NDPS Act. Thereafter, the charge of the case was framed against the appellant. He denied the charges and claimed trial. 3. During the course of trial, the prosecution examined 17 witnesses and various documents were also exhibited. Thereafter, statement of appellant under section 313 Cr.P.C was recorded. Two witnesses were examined on the defence side. No documentary evidence was produced by the accused. 4. Upon conclusion of the trial, the learned trial court vide impugned judgment dated 23.06.2011 convicted and sentenced the appellant for offence under Section 8/20 NDPS Act, as stated above. 5. At the threshold, learned counsel for the appellant does not challenge the finding of conviction but it is submitted that only 4.100 cannabis plants were recovered in the instant case, which is below commercial quantity. The accused-appellant has already undergone two months imprisonment out of total imprisonment of three years and also suffered mental agony and trauma since 2005, therefore, the substantive sentence awarded to the appellant for the aforesaid offence may be reduced to the period already undergone by him. The accused-appellant has already undergone two months imprisonment out of total imprisonment of three years and also suffered mental agony and trauma since 2005, therefore, the substantive sentence awarded to the appellant for the aforesaid offence may be reduced to the period already undergone by him. In support of this contention, learned counsel for the appellant relied upon judgment of this Court in the case of Mohammad AN vs. State of Rajasthan reported in 2013(4)CJ(Cri.) (Raj.) 1914, Niyamat AN Nemu vs. State of Rajasthan reported in 2013(4) CJ(Cri.) (Raj.) 1915, Sher Singh vs. State of Rajasthan reported in 2016(1) WLN 156 (Raj.) 6. On the other hand, the learned Public Prosecutor opposed the submissions made by the learned counsel for the appellant. The learned Public Prosecutor submitted that there is neither any occasion to interfere with the sentence awarded to the accused appellant nor any compassion or sympathy is called for in the said case. 7. Since the appellant's counsel does not challenge the appellant's conviction, this Court need not go into the merits of the case and accordingly, the conviction of the appellant as recorded by the learned trial court for the offence under Section 8/20 NDPS Act is maintained. 8. So far as the quantum of punishment is concerned, I have perused the evidence of the prosecution as well as defence and the judgment passed by the trial court regarding. It is not disputed that the appellant has so far undergone a period of two months incarceration out of the total three years imprisonment so also suffered the agony and trauma of protracted trial. As per material available on record, the recovery in question was appellant's first offence. Thus, looking to the over-all circumstances and the fact that the appellant has remained behind the bars for considerable time, it will be just and proper if the sentence awarded by the trial court for offence under Section 8/20 NDPS Act is reduced to the period already undergone by him while maintaining the amount of fine in the sum of Rs. 10,000/-. 9. Accordingly, the appeal filed by the appellant is partly allowed. While maintaining the appellant's conviction and sentence for offence under Section 8/20 NDPS Act, the sentence awarded to him is reduced to the period already undergone, however the amount of fine is hereby maintained. Two month's time is granted to deposit the fine before the trial court. 10,000/-. 9. Accordingly, the appeal filed by the appellant is partly allowed. While maintaining the appellant's conviction and sentence for offence under Section 8/20 NDPS Act, the sentence awarded to him is reduced to the period already undergone, however the amount of fine is hereby maintained. Two month's time is granted to deposit the fine before the trial court. In default of payment of fine, the appellant shall undergo one month's rigorous imprisonment. Appellant is on bail. His bail bonds stand discharged. 10. The record of the trial court be sent back forthwith.