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2019 DIGILAW 2306 (RAJ)

Ashlam v. State of Rajasthan

2019-08-27

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 29.05.2012 passed by learned Special Judge, NDPS Cases, Hanumangarh in Sessions Case No. 58/2005 by which the learned Judge convicted the appellant for offence under Section 8/18C NDPS Act and sentenced to undergo four years R.I. alongwith fine of Rs.40,000/-, in default of payment of fine to undergo one year's R.I. 2. Brief facts of the case are that on 14.10.2005, Sh. Dharma Poonia, SHO PS Rawatsar on a secret information at 3 PM reached near Thalarka Nohar road and made nakabandi where a person was coming, who seeing to the police party tried to turn, on doubt he was apprehended and identified as accused Ashlam and he was searched and recovered 1 KG opium tied around with his waist in a cloth. Two samples of 100-100 gms were taken and rest of opium was sealed in other bag and accused was arrested. 3. Thereafter the police registered a case against the accusedappellant being FIR No.256/05 for offence under Sections 8/18 of NDPS Act and started investigation. After completion of investigation, the police filed challan against the present appellant and another accused Subhash for offence under Sections 8/18, 29 of NDPS Act. Thereafter, the charges were framed against the appellant for offence under Section 8/18 and against accused Subhash for offence under Sections 8/18 & 29 of NDPS Act and other accused. They denied the charges and claimed trial. 4. During the course of trial, the prosecution examined 14 witnesses and various documents were also exhibited. Thereafter, statements of appellant and co-accused under section 313 Cr.P.C were recorded. Three witnesses were examined on defence side. 5. Upon conclusion of the trial, the learned trial court vide impugned judgment dated 29.05.2012 acquitted the co-accused Subhash for offence under Sections 8/18 & 29 of NDPS Act but convicted and sentenced the appellant for offence under Section 8/18C NDPS Act as mentioned earlier. 6. Three witnesses were examined on defence side. 5. Upon conclusion of the trial, the learned trial court vide impugned judgment dated 29.05.2012 acquitted the co-accused Subhash for offence under Sections 8/18 & 29 of NDPS Act but convicted and sentenced the appellant for offence under Section 8/18C NDPS Act as mentioned earlier. 6. At the threshold, learned counsel for the appellant does not challenge the finding of conviction but it is submitted that since the occurrence relates back to year 2005 and in the present case only 1 Kg opium was recovered from the appellant which is below commercial quantity and further the appellant has so far suffered a sentence of about four and half months out of total sentence of four years, therefore, it is prayed that the substantive sentence awarded to the appellant for the aforesaid offence may be reduced to the period already undergone by him. In support of his contention, learned counsel for the appellant relied upon judgment of this Court in the case of Mohammad Ali v. State of Rajasthan,2013 4 CJ(Cri)(Raj) 1914 , Niyamat Ali Nemu v. State of Rajasthan,2013 4 CJ(Cri)(Raj) 1915 , Sher Singh vs. State of Rajasthan, (2016) 1 WLN(Raj) 156 . 7. On the other hand, the learned Public Prosecutor opposed the submissions made by the learned counsel for the appellant. The learned PP 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. 8. 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 8/18C NDPS Act is maintained. 9. I have perused the evidence of the prosecution as well as defence and the judgment passed by the trial court regarding conviction of the accused-appellant. It is not disputed that the occurrence relates back to year 2005 and 1 Kg opium was recovered from the appellant which is below commercial quantity and the appellant has so far undergone a period of about four and half months incarceration out of the total four years' rigorous imprisonment so also suffered the agony and trauma of protracted trial. It is not disputed that the occurrence relates back to year 2005 and 1 Kg opium was recovered from the appellant which is below commercial quantity and the appellant has so far undergone a period of about four and half months incarceration out of the total four years' rigorous imprisonment so also suffered the agony and trauma of protracted trial. 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 8/18C NDPS Act is reduced to the period already undergone by him while maintaining the amount of fine in the sum of Rs. 40,000/-. 10. Accordingly, the appeal is partly allowed. While maintaining the appellant's conviction and sentence for offence under Section 8/18C NDPS Act, the sentence awarded to him is reduced to the period already undergone, however the amount of fine is hereby maintained. In default of payment of fine, the appellant shall undergo one year's rigorous imprisonment. Two month's time is granted to deposit the fine before the trial court. Appellant is on bail. His bail bonds stand discharged. 11. The record of the trial court be sent back forthwith.