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2019 DIGILAW 462 (RAJ)

Vishal v. State of Rajasthan

2019-02-07

MANOJ KUMAR GARG

body2019
JUDGMENT 1. Instant criminal appeal has been filed by the appellant under Section 374(2) Cr.P.C. against the judgment dated 10.04.2018 passed by learned Special Judge, NDPS Act Cases No. 1, Chittorgarh in Sessions Case No. 80/2011 by which the learned Judge convicted the appellant for offence under Section 8/18(C) of NDPS Act and sentenced to undergo five years R.I. and imposed a fine of Rs. 50,000/- and in default of payment of fine to undergo one year R.I. 2. Brief facts of the case are that on 29.03.2011, on receiving information, the Police team reached at Mataji Temple situated outside the Roadways Bus Stand, Chittorgarh and noticed a person standing there having a bag in his hand. On seeing the Police team, he became uneasy and on search of bag, the police recovered 2 Kgs opium kept in polythene. In view of the aforesaid recovery, after adopting usual procedure, a case has been registered at Chittorgarh Kotwali Police Station, Chittorgarh and after completion of investigation charge-sheet was filed against the appellant for offence under Section 8/18 NDPS Act before the trial court. Thereafter, the trial court framed the charges against the appellant. 3. During the course of trial, the prosecution examined its witnesses and various documents were also exhibited. Thereafter, statement of appellant under section 313 Cr.P.C was recorded. No witness was examined on the defence side. 4. Upon conclusion of the trial, the learned trial court vide impugned judgment dated 10.04.2018 convicted the present appellant for offence under Section 8/18(C) NDPS as mentioned earlier. 5. At the outset, learned counsel for the appellant submits that accused appellant is not challenging the finding of conviction but since the accused appellant has remained in custody for a considerable period and he has already suffered a sentence of 04 years, 04 months and 09 days out of the total sentence of five years and further no other criminal case is registered against the appellant, therefore, it is prayed that the substantive sentence awarded to the appellant for the aforesaid offences may be reduced to the period already undergone by him. 6. 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. 6. 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. 7. 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. 8. Learned Public Prosecutor has submitted the custody certificate of the appellant issued by the Central Jail, Udaipur according to which the appellant has so far undergone a period of 04 years 04 months and 09 days of sentence out of the total sentence of five years. Thus, undisputedly, the appellant has so far undergone a period of more than four years out of the total five years rigorous imprisonment so also suffered the agony and trauma of protracted trial. Thus, looking to the over-all circumstances including the fact that the recovered contraband was below commercial quantity 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 8/18(C) of NDPS Act is reduced to the period already undergone by him. 9. In the case of Shahfijad Khan Mahebub Khan Pathan (supra), Honble Supreme Court held as under: "(8) Coming to the question of sentence, it is not in dispute that the appellants were charged for possession of brown sugar in the quantity of 500 grams which falls under the head "commercial quantity". As per the notification of the Government being No. SO.1055(E) dated 19.10.2001, it is necessary to consider the same in terms of Section 21(c) of the NDPS Act. The trial Judge, taking note of the fact that the appellants were carrying such commercial quantity of brown sugar to the State of Gujarat from the State of Madhya Pradesh, awarded RI for 15 years and also directed them to pay a fine of Rs. 1.5 lakhs each, in default, to further undergo RI for 3 years. For offences punishable under Sections 8(c), 21 and 29 of the NDPS Act, undoubtedly, the minimum sentence prescribed is 10 years which may extend to 20 years with fine. 1.5 lakhs each, in default, to further undergo RI for 3 years. For offences punishable under Sections 8(c), 21 and 29 of the NDPS Act, undoubtedly, the minimum sentence prescribed is 10 years which may extend to 20 years with fine. In this regard, it is useful to refer a decision of this Court in Balwinder Singh v. Asstt. Commr., Customs & Central Excise, (2005) 4 SCC 146. The appellant therein was convicted for offences punishable under Sections 18, 22, 23, 25, 28, 29 and 30 of the NDPS Act and Section 120-B of the Indian Penal Code, 1860 (in short the IPC). This Court, having regard to the facts and circumstances and taking note of the fact that the appellant therein was convicted for the said offences for the first time (emphasis supplied), while confirming the conviction, reduced the sentence from 14 years to 10 years for the offences under the NDPS Act and the IPC. (9) It is projected before us that both the appellants are first time offenders and there is no past antecedent about their involvement in offence of like nature on earlier occasions. It is further brought to our notice, which is also not disputed by the learned counsel for the State that as on date, the appellants had served nearly 12 years in jail. In view of the same and in the light of the decision of this Court, in Balwinder Singh (supra), while confirming the conviction, we reduce the sentence to 10 years which is the minimum prescribed sentence under the relevant provisions of the NDPS Act." 10. Honble Supreme Court while confirming the conviction of appellant therein reduced the sentence of 15 years to 10 years. Applying the law laid down by Honble Supreme Court in the case of Shahfjad Khan Mahebub Khan Pathan (supra) in the facts of this case, as the appellant is a first time offender, the sentence of 5 year as imposed by the learned trial court upon the appellant is hereby reduced to the period already undergone by him because in the instant case, the recovery effected from the possession of the appellant was 2 kg. of opium, which is below the commercial quantity. 11. Accordingly, the appeal is partly allowed. of opium, which is below the commercial quantity. 11. Accordingly, the appeal is partly allowed. While maintaining the appellants conviction and sentence for offence under Section 8/18(C) of NDPS Act, the sentence awarded to him is reduced to the period already undergone by him. The fine imposed by the trial court is hereby reduced from Rs. 50,000/- to Rs. 20,000/- and the sentence awarded in default of payment of fine i.e. 1 years R.I. is also hereby reduced to 1 month R.I. 12. The record of the trial court be sent back forthwith.