Bhoja Ram vs State Of Rajasthan

Instant criminal appeal has been filed by the appellant under Section 374(2) Cr.P.C. against the judgment dated 31.03.2011 passed by learned Special Judge, NDPS Cases, Jodhpur in Sessions Case No. 66/2006 by which the learned Judge convicted the appellant for offence under Section 8/18 NDPS Act and sentenced to undergo five years R.I. alongwith fine of Rs. 10,000/- in default of payment of fine to undergo three months R.I.

Brief facts of the case are that on 02.04.2006, the SHO Police Station Ahore, Distt. Jalore on receiving a secret information that a person will be carrying Opium milk from Thawla to Bhujtara. On receiving this information, an information in this regard was sent to higher authorities and a ambush was laid by the police team. At about 4:20 PM one person carrying plastic bag was asked to stop, but he tried to ran away. The person was apprehended and on interrogation, he disclosed his name as Bhoja Ram and from his possession, one plastic bag was recovered containing black substance which was opium milk weighing 01 kg 540 gm. The police seized the contraband and arrested the appellant.

The police registered the FIR No. 67/2006 for offence under Section 8/18 NDPS Act and started investigation. After investigation, the police filed challan against the present appellant for offence under Section 8/18 NDPS Act. Thereafter, the charges of the case were framed against the appellant. He denied the charges and claimed trial.

During the course of trial, the prosecution examined 09 witnesses and various documents were also exhibited. Thereafter, statement of appellant under section 313 Cr.P.C was recorded. Witness Jetaji DW/1 was examined on the defence side.

Upon conclusion of the trial, the learned trial court vide impugned judgment dated 31.03.2011 convicted and sentenced the appellant for offence under Section 8/18 NDPS Act as mentioned earlier.

At the threshold, learned counsel for the appellant does not challenge the finding of conviction but it is submitted that 1 kg 540 gm opium milk was recovered from the appellant which is below commercial quantity. Since the occurrence relates back to year 2006 and the appellant has so far suffered a sentence of more than four months imprisonment out of total sentence of five years RI, 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 this contention, learned counsel for the appellant relied upon judgment of this Court in the case of Mohammad Ali v. State of Rajasthan reported in 2013(4) CJ(Cri.) (Raj.) 1914, Niyamat Ali Nemu v. State of Rajasthan reported in 2013(4) CJ(Cri.) (Raj.) 1915, Sher Singh vs. State of Rajasthan reported in 2016(1) WLN 156 (Raj.)

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.

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 8/18 NDPS Act is maintained.

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 appellant has so far undergone a period of more than four months incarceration out of the total five years rigorous imprisonment so also suffered the agony and trauma of protracted trial. As per material available on record, it is evident that 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 8/18 NDPS Act is reduced to the period already undergone by him while maintaining the amount of fine in the sum of Rs. 10,000/-.

Accordingly, the appeal is partly allowed. While maintaining the appellant's conviction and sentence for offence under Section 8/18 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 three months 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.

The record of the trial court be sent back forthwith.