Aalam vs State of U.P.

Yogendra Kumar Sangal, J. 1. This appeal has been filed by the accused Aalam against the judgment and order dated 22.04.2010 passed by learned Additional District and Sessions Judge/F.T.C. Court No. 4, Hardoi in S.T. No. 4/2003 related to Case Crime No. 408/2002 u/s 8/18/21 N.D.P.S. Act, P.S. Sandila, District Hardoi. By the impugned judgment and order, learned Session Judge held guilty to the accused-Appellant for the offence u/s 21 N.D.P.S. Act and sentenced him to serve out two years R.I. And to pay a fine of Rs. 2,000/-and in default of payment of fine two months imprisonment.

As per prosecution case on 22.11.2002 when S.I. R.K. Srivastava in the company of other police persons was in "Gast duty". On the information of informer, he came at Beniganj Road near Imliya Bagh Tiraha and saw that accused coming by the motor-cycle. By seeing the police persons, he tried to escape but he was apprehended at 6.15 P.M. there. On inquiry, he had given his name as Aalam and had also given his address. After taking all precautions and informing the Appellant his right about search before gazetted officer/Magistrate on his request from his search 20 grams smack was recovered from his pocket. The same was sealed on the spot and recovery memo was prepared. Accused was brought at police station. FIR was lodged against him. Recovered articles was sent for chemical examination and it was found smack. As per report of Director of Forensic Laboratory it was contraband articles under the provisions of N.D.P.S. Act. After completing the investigation, charge-sheet was submitted against the accused-Appellant.

Accused was charged to face the trial for the offence referred above but he pleaded not guilty. To support its case on behalf of the prosecution 4 witnesses were examined. They have given the details of the prosecution case and proved the documents prepared by them during the course of investigation. Chemical examiner report was also brought on the record.

In his statement u/s 313 Code of Criminal Procedure, accused had denied the correctness of the prosecution case and evidence and claimed his false implication. No evidence in defence was adduced on his behalf.

After hearing parties counsel and perusing the record, learned trial court held him guilty for the charge leveled against him and sentenced him as above. Aggrieved by the judgment and order, this appeal has been filed.

Learned Counsel for the accused-Appellant had not pressed the appeal on merit and he simply prayed for taking lenient view in awarding the sentence in the matter.

Learned AGA has not raised any serious objection if lenient view is taken in the matter seeing the facts and circumstances of the case.

On perusal of the judgment and record, I also find that learned trial court has rejected all the pleas raised on behalf of the accused-Appellant on which the charge was leveled and challenged, with cogent reasons. Sufficient reasons are given that compliance of the provisions of N.D.P.S. Act is there in the matter. I do not find any reason to differ with the findings of the conviction recorded by the trial court in the matter.

However, from the impugned judgment and order, it reveals that accused-Appellant was sentenced to undergo two years R.I. and to pay a fine of Rs. 2,000/-and in default of payment of fine, two months additional imprisonment. From the affidavit available on the record submitted by the accused-Appellant, it reveals that accused-Appellant was arrested on 27.11.2002 and he was released on bail on 15.09.2003 when the trial was going before the trial court. Now since the date of judgment of the trial court i.e. from 22.04.2010, he is in jail. Correctness of these facts not disputed by learned AGA after going through the record.

Learned Counsel for the accused-Appellant argued that already for more than 17 months he had remained in jail. It is also reported that there is no previous criminal history of the accused-Appellant. He is ready to deposit the amount of fine awarded by the trial court. Learned Counsel for the accused-Appellant prayed for taking lenient view in awarding the sentence i.e. already undergone by him. Learned AGA raised no serious objection in this regard seeing the facts and circumstances of the case. No previous criminal history of the accused-Appellant reported. Seeing the facts and circumstance of the case and considering the arguments of both the parties and also taking into consideration that no previous criminal history of the accused-Appellant is stated and he is of young age, if his sentence is modified and reduced to the period already undergone by him and in fine awarded by the trial court and in default of payment of fine further imprisonment as stated in judgment of trial court, this will meed the end of justice. Accordingly, order of conviction is hereby maintained. However, sentence of the accused-Appellant is modified and reduced to the period already undergone by him and to pay fine already awarded by the trial court. If fine is not deposited, he will serve out the sentence awarded by the trial court. However, if find is deposited by him, he will be released from the jail. Let copy of the order be sent to the trial court for compliance and report.

With the above observation, the appeal is finally disposed of.