JUDGMENT : The appellant, hereinafter to be referred as ‘the accused’ was convicted and sentenced under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short ‘the Act’ for holding 1 KG ‘charas’. Vide impugned judgment, the accused was sentenced to undergo rigorous imprisonment for a period of nine years and to pay fine of rupees 20,000/-. In default of payment of fine, accused shall also undergo simple imprisonment for a period of six months, hence the present appeal preferred by the accused/convict. 2. Brief facts necessary for adjudication of the appeal are that Head Constable Roop Singh PW-8, Investigating Officer, Police Post Banikhet alongwith Constable Sanjay Kumar PW-2 and some other police officials were on Nakabandi and traffic checking duty at Kheri Bridge, Banikhet. At about 9 pm, when the police party consisting of HC Roop Singh PW-8, Constable Sanjay Kumar PW-2 HHC Mazi Mohammad, Constable Ram Prakash, Excise and Taxation Inspector Naresh Chand PW-1 and one Purshottam were present on the bridge, the accused came walking from the side of Kheri side carrying back on his right shoulder. On seeing the policy party he got scared and had tried to run back. On suspicion he was apprehended. On inquiry, he naratted his name as Ravi Kumar son of Sh. Hari Ram. Head Constable Roop Singh then apprised him about of his right of being searched either before a Magistrate or a Gazetted Officer. He consented to be searched by the policy party. Memo Ext. PW1/A was prepared. HC Roop Singh along with other police officials, Excise and Taxation Inspector and the public witnesses had offered themselves to be searched by the accused. Memo Ext. PW1/D was prepared and nothing incriminating was recovered from his person. HC Roop Singh then conducted the search of the bag, Ext. P2, which the accused was carrying. A polythene envelope Ext.P3 was found to be there in the bag. On search, the polythene envelope was found containing in it a black coloured substance in the shape of sticks and balls. It was identified to be Charas Ext. P4. The Charas was weighed with the help of a traditional weighing scale and it was found to be 1 Kg. The Charas was then put back in the same polythene envelope and the envelope was then put back in the same carry bag. It was identified to be Charas Ext. P4. The Charas was weighed with the help of a traditional weighing scale and it was found to be 1 Kg. The Charas was then put back in the same polythene envelope and the envelope was then put back in the same carry bag. The bag was then packed and sealed in a parcel Ext. P-1 and sealed with five seals of impression X. Sample seal was taken on a piece of cloth Ext. PW1/B. NCB-1 form Ext. PW6/C was filled in triplicate. The seal impression X was put on the NCB-1 forms. The seal after use was handed over to Purshottam. The parcel containing the Charas was seized vide memo Ext. PW1/C . Rukka Ext PW-8/A was prepared and it was handed over to constable Sanjay Kumar with the direction to carry it to Police Station, Dalhousie for registration of the FIR. A carbon copy of Rukka Ext. PW 7/A was also sent through constable Ram Prakash to Superintendent of Police, Chamba. ASI Jeet Singh PW-6 registered the FIR Ext. PW6/A, made an endorsement on Rukka and had sent the case file to the spot. The investigation was conducted by HC Roop Singh, who prepared the site plan Ext. PW8/B and recorded the statements of the witnesses. The accused was arrested vide memo Ext PW-1/E. The case property consisting of parcel, NCB-1 form in triplicate and sample seal X were handed over to ASI Jeet Singh PW-6, who was officiating as Station House Officer, Police Station, Dalhousie, at the relevant time for resealing the parcel. ASI Jeet Singh had resealed the parcel with two seals of impression H. Specimen seal impression of seal H was taken on a piece of cloth Ext. PW1/B. The case property along with documents was handed over to MHC Bhajan Singh, PW-3. MHC had made an entry in the register of Malkhana, copy of which is Ext. PW3/A and had deposited the same in Malkhana. The case property alongwith documents was handed over to HHC Kamal Kumar PW-4 with the direction to carry it to State FSL, Junga vide R.C No. 151/2009, copy of which is Ext. PW3/B. HHC Kamal Kumar carried all these articles to State FSL, Junga in safe condition and handed over the receipt to the MHC on his return. The special report Ext. PW3/B. HHC Kamal Kumar carried all these articles to State FSL, Junga in safe condition and handed over the receipt to the MHC on his return. The special report Ext. PW7/B was prepared and sent through Constable Mazid Mohammad to Superintendent of Police, Chamba. The Superintendent of Police, Chamba had made an endorsement on the special report and had handed it over to his Reader. He had also handed over the carbon copy of Rukka to his Reader after making an endorsement on it. HC Subhas Chand PW-7 had made an entry in the relevant register regarding the receipt of the carbon copy of Rukka and the special report and had filed them on record. 3. In order to prove its case, the prosecution examined as many as eight witnesses. The statement of the accused, under Section 313 Cr.P.C, was recorded and he claimed innocence. No witness, in defence, was examined by the accused. 4. Feeling aggrieved by the judgment of learned trial court, the appellant has preferred and maintained the instant appeal before this Court. 5. I have heard Mr. Vishwa Bhushan, learned counsel for the appellant and Mr. Arvind Sharma, learned Additional Advocate General for the respondent-State and also gone through the records of the case. 6. Ms. Vishwa Bhushan, learned counsel for the appellant has argued that there is no compliance of Section 50 of the NDPS Act and though the Charas was recovered from the bag but his personal search was taken without complying of Section 50 and so the trial is initiated and recovery cannot be considered and the accused be acquitted. 7. On the other hand, Mr. Arvind Sharma, learned Additional Advocate General has argued that accused cannot be acquitted, as the Charas was recovered from the bag and in these circumstances the findings as recorded by learned court below are just reasoned and are in accordance with law. 8. In rebuttal, learned counsel for the appellant has argued that the appellant is sole bread earner and he was never involved in any other case. He has further submitted that the appellant is having old mother to look her after and taking into consideration his conduct in the jail for the last 4 years and 8 months, he requires leniency and he is required to be released. He has further submitted that the appellant is having old mother to look her after and taking into consideration his conduct in the jail for the last 4 years and 8 months, he requires leniency and he is required to be released. In support of his argument he has relied upon a judgment of Hon’ble Supreme Court in case titled as SK. Sakkar @ Mannan Vs. State of West Bengal, extract whereof is extracted hereinbelow: “xx xx xx 9. Faced with this, learned Senior Counsel for the appellant relies upon several mitigating circumstances to persuade us to reduce the sentence period. He passionately urged that: (I) the appellant has suffered protracted trial for more than 23 years; (ii) he alone has been convicted while his co-accused are acquitted; (iii) the appellant was not involved in any other case under the NDPS Act or other Penal Laws; (iv) the appellant has already undergone actual sentence of 2 years 4 months and 16 days out of the total sentence of five years; (v) and that the appellant has not misused the concession of bail granted by this Court on 02.11.2012. xx xx xx” 9. Investigating Officer, PW-8 HC Roop Singh, deposed that 1 KG charas was recovered from the exclusive and conscious possession of accused. He has also proved all the relevant documents prepared during the course of the Investigation, at the spot, and thereafter at the police station. He also deposed that entire proceedings were carried out in the presence of independent witnesses and Excise and Taxation Inspector. In the cross-examination, he stated that ETI Naresh Chand was called to the spot on telephone. Some evidence were checked at the spot. It was dark at the spot, but there was a street light. He feigned ignorance if the accused coming from Kheri road could have noticed the police standing on the road under the street light. It took about three hours to complete the proceedings. Rukka was sent at 10.15 PM through constable Sanjay. He categorically denied that no Charas was recovered at the spot and the accused had falsely been implicated in the case. 10. PW-1 Naresh Chand, has deposed that on 16.10.2009, he alongwith ASI Yudhir Singh and on Purshottam was present at Kheri bridge, Banikhet. At about 9 am, accused came from the side of Kheri, having a bag on his right shoulder. 10. PW-1 Naresh Chand, has deposed that on 16.10.2009, he alongwith ASI Yudhir Singh and on Purshottam was present at Kheri bridge, Banikhet. At about 9 am, accused came from the side of Kheri, having a bag on his right shoulder. On seeing the police party, accused got perplexed and turned back. A suspicion arose and he was nabbed. On inquiry, he divulged his antecedents. ASI Yudhbir Singh informed the accused of his legal right to be searched either before a Gazetted Officer or a Magistrate. The accused had consented to be searched by the police party. Memo Ext. PW1/ A was prepared in his presence and in the presence of Purshottam. Thereafter, accused was brought to the Police Station. Prior to that bag of the accused was searched and it was found containing a polythene envelope having Charas. The charas was weighed at the Police Station. On weightment, it was found to be 1Kg. The charas was then packed and sealed in a parcel with seal impression. ‘X’ Specimen of seal impression Ex.PW1/B was also taken and seal was retained by the ASI himself. In the cross-examination he deposed that all proceedings were conducted at the spot. Seizure Memo was prepared at the spot, which bears his signatures and one Purshottam and copy of the same was given to the accused free of costs, who had also signed it. He admitted that before conducting search of the accused, the police officials including himself had given search to the accused, but nothing incriminating was found. He stated that the seal after use was given to witness Purshottam. The Charas had been weighed at the spot by the police with the weights and scales which were there in the I.O. Kit. In his cross-examination by the accused, he stated that he was met by the police officials at Kheri Bridge, Banikhet. Police had been checking the vehicles at the spot, but none was challenged. It took about one hour to complete the proceedings at the spot. To a suggestion put to him, he was categorical that the accused was coming from the side of Kheri road and he was in the dark. He also admitted that the accused could have noticed the police, which was standing in the light on the road. It took about one hour to complete the proceedings at the spot. To a suggestion put to him, he was categorical that the accused was coming from the side of Kheri road and he was in the dark. He also admitted that the accused could have noticed the police, which was standing in the light on the road. He admitted that the accused had only been told by the police of his right to be searched before a Gazetted Officer or the Magistrate. 11. PW-3 Constable Sanjay Kumar deposed that on 14.12.2009, he was present alongwith other police officials at Kheri Bridge, Banikhet. A Nakka had been laid and set there. Excise and Taxation Inspector and one Purshottam were also present there. At about 9 pm, accused came from the side of Kheri having a black coloured bag on his shoulder. On seeing the police party accused had turned back and tried to flee away. He was overpowered and thereafter his antecedents were known. Option was given to the accused vide memo Ex.PW1/A. Prior to it, police had given its search vide memo Ex. PW1/D. The accused had consented to be searched by the police party. On search of the bag Ex. P2 it was found containing a polythene envelope Ex. PW-3, in which Charas was there. On its weighment it was found to be 1 KG. The Charas was then packed and sealed in a parcel Ext P1 and seizure memo Ex. PW1/C. The specimen of seal was taken on a piece of cloth Ex. PW1/B and seal after use was handed over to Purshottam and the accused was arrested. Memo of arrest Ex. PW1/E was prepared and Rukka was drawn and handed over to him which he took to the police station, Dalhousie and handed over the same to MHC, who prepared the file and he took the same to the spot and handed it over to the investigating officer. In cross-examination, he stated that they had left Police Post, Banikhet at about 6.35 pm and reached the spot in ten minutes. They checked about 20-25 vehicles. He admitted that it was dark at the spot. Volunteered stated that, there was a street light. He admitted that the accused was coming from the side of Kheri road. The accused had firstly been apprehended by HC Roop Singh. They checked about 20-25 vehicles. He admitted that it was dark at the spot. Volunteered stated that, there was a street light. He admitted that the accused was coming from the side of Kheri road. The accused had firstly been apprehended by HC Roop Singh. It took about three hours to complete the entire formalities at the spot. He denied that he was not present at the spot and that no Charas had been recovered from the accused. 12. After close scrutiny of the depositions of the prosecution witnesses, no loopholes or lacunae are found in the prosecution story, contrarily, the prosecution story is in complete harmony. Therefore, the only conclusion of the above discussion is that the learned Trial Court has rightly convicted the accused for the commission of the offence punishable under Section 20 of the ND&PS Act and the impugned judgment is an outcome of proper appreciation of law and evidence, so the same does not need any interference by this Court. However, before parting with this case, this Court deems it fit and proper to examine the contention of learned counsel for the accused that in case this Court finds that the appeal has no merits, than following mitigating circumstances may be considered for reducing the sentence, as imposed upon the accused by the learned Trial Court: (i) the accused has suffered protracted trial; (ii) no other case, under the NDPS Act or any other penal law, is either pending or the accused is convicted in any case; (iii) the accused has already undergone substantial period of sentence; and (iv) the accused is the sole bread winner of his family, 13. To support his arguments he has relied upon a judgment of Hon’ble Supreme Court, rendered in S.K. Sakkar @ Mannan vs. State of West Bengal, 2021 (1) Him L.R. (SC) 1178, relevant paras whereof, for the sake of ready reference, are extracted hereunder: “9. Faced with this, learned Senior Counsel for the appellant relies upon several mitigating circumstances to persuade us to reduce the sentence period. Faced with this, learned Senior Counsel for the appellant relies upon several mitigating circumstances to persuade us to reduce the sentence period. He passionately urges that: (i) the appellant has suffered protracted trial for more than 23 years; (ii) he alone has been convicted while his co-accused are acquitted; (iii) the appellant was not involved in any other case under the NDPS Act or other Penal Laws; (iv) the appellant has already undergone actual sentence of 2 years 4 months and 16 days out of the total sentence of five years; (v) and that the appellant has not misused the concession of bail granted by this Court on 02.11.2012. 10. We find some merit in the submission noticed above. It may be noted that the appellant committed the crime in the year 1997, i.e. much before the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 came into force. The punishment for contravention in relation to cannabis plant or any other provision of the NDPS Act, in his case, would thus be regulated by the unamended Section 20 of the NDPS Act, as it stood before the amendment of 2001 and which reads as follows: “20. Punishment for contravention in relation to cannabis plant and cannabis. Whoever, in contravention of any provision of this Act or any rule or order made or condition of license granted thereunder:- cultivates any cannabis plant; or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable,- where such contravention relates to ganja or the cultivation of cannabis plant, with rigorous imprisonment for a term which may extend to five years and shall also be liable to find which may extend to fifty thousand rupees; where such contravention relates to cannabis other than ganja, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to find which shall not be less than one lakh rupees and which may extend to two lakh rupees: Provided that the court may, for reasons to eb recorded in the judgment, impose a fine exceeding two lakh rupees.” 11. It is manifest from Section 20(i) of NDPS Act (as it stood in 1997), that even though a maximum sentence of five years RI and a fine of upto Rs. 50,000/- was prescribed but there was no minimum mandatory sentence. It is manifest from Section 20(i) of NDPS Act (as it stood in 1997), that even though a maximum sentence of five years RI and a fine of upto Rs. 50,000/- was prescribed but there was no minimum mandatory sentence. The Legislature had in its wisdom left it to the judicious discretion of a court to award the minimum sentence albeit guided by the well known principles on the proportionality of sentence. Taking into consideration the peculiar facts and circumstances of this case, it appears to us that the ends of justice would be adequately met if the appellant’s sentence is reduced to the extent of the period he has already undergone. We order accordingly. 12. For the reason(s) stated above, the appeal is allowed in part; the impugned judgments of the Special Judge and the High Court are modified and the sentence of five years RI awarded to the appellant is reduced to the period of sentence already undergone.” 14. The judgment (supra), as referred by the learned counsel for the accused, is partly applicable to the facts of the instant case, but not fully, as the accused in the judgment (supra) suffered protracted trial of more than 23 years, whereas the trial of the accused herein concluded in approximately few years, so it cannot be said that the accused suffered protracted trial. However, the record nowhere reflects that the accused is involved in any other NDPS case or other penal laws. Admittedly, the accused is currently in jail and he has preferred the instant appeal and by now he has already undergone considerable sentence out of the total sentence of nine years. Therefore, there are some mitigating circumstances which this Court need to consider while examining this facet of the case. 15. Admittedly, 992 grams charas was recovered from the conscious and exclusive possession of the accused and rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees is provided under Section 20(B) of the NDPS Act. A bare reading of Section 20(B) of the NDPS Act shows that the word “may” has been used purposefully, and the Legislature has deliberately left it to the judicious discretion of the Court concerned to award the sentence under this Section, which may go upto ten years, but not more than ten years. A bare reading of Section 20(B) of the NDPS Act shows that the word “may” has been used purposefully, and the Legislature has deliberately left it to the judicious discretion of the Court concerned to award the sentence under this Section, which may go upto ten years, but not more than ten years. So, considering the mitigating circumstances that the accused has already undergone substantial chunk of his imprisonment, there is nothing on record that the accused is involved in any other NDPS case or any other penal laws, also the fact that the accused is sole bread winner of his family and also considering the judgment of Hon’ble Supreme Court, rendered in S.K. Sakkar @ Mannan vs. State of West Bengal, 2021 (1) Him L.R. (SC) 1178, as referred hereinabove, this Court finds that the ends of justice would only be sub served in case the rigorous imprisonment for a period of nine years, as imposed by the learned Trial Court, vide impugned judgment dated 25.4.2017/27.4.2017, is reduced to five years. Accordingly, the sentence, as imposed by the learned Trial Court upon the accused/convict, is modified. 16. The accused has been rightly convicted as the recovery of charas is proved against the accused person. Now coming to the second leg of argument that the sentence is required to be reduced. This Court finds that the appellant was never involved in any other case earlier or subsequent he was on bail of the similar nature or in any other case. The view of the learned trial court in rejecting the contention of learned counsel for the accused for lenient view is required to be reconsidered in the instant appeal. The appellant’s role cannot be compared with the persons, who are involved in the trade of narcotics. The appellant is a boy from the remote village who was apprehended with the narcotics and that is non-commercial quantity of chars. In these circumstances, considering the fact that the sentence can be imposed upto 10 years and there is no minimum sentence prescribed, so the appeal is allowed partially by modifying the sentence and reduced it to 5 years from 9 years. As far as the fine amount Rs. 20,000/- is concerned, the same remained unaltered meaning thereby that the appellant is sentenced to undergo 5 years rigorous imprisonment and pay fine of Rs, 20,000/-. 17. As far as the fine amount Rs. 20,000/- is concerned, the same remained unaltered meaning thereby that the appellant is sentenced to undergo 5 years rigorous imprisonment and pay fine of Rs, 20,000/-. 17. In view of the above, the appeal stands disposed of, so also pending application(s), if any. Records be sent back forthwith.