Dharam Pal @ Dhamma vs State of Haryana

Rajan Gupta, J.—This is an appeal against the judgment of conviction dated 8th January, 2011 and order of sentence dated 12th January, 2011, delivered by Judge, Special Court, Karnal. The trial court after recording the prosecution evidence, came to the conclusion that the accused/Appellant was guilty of possession of contraband (i.e. 08 Kgs and 200 grams of poppy husk). He was convicted u/s 15(b) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to be as "NDPS Act") and sentenced to undergo RI for nine months and to pay a fine of Rs. 5,000/-, in default whereof to further undergo RI for two months.

Feeling aggrieved against the judgment of the trial court, the Appellant has approached this Court through the instant appeal.

Learned Counsel for the Appellant states that he is limiting his prayer only to the extent of reduction in the sentence awarded and does not assail the judgment of conviction. Learned Counsel has submitted that the Appellant is a poor man and has to support his family including his ailing wife. According to him, in the present case the quantity of poppy husk recovered from the possession of the Appellant is much below the commercial quantity and out of the total awarded sentence of four nine months, he has undergone about 03 months and 27 days. Learned Counsel, therefore, prays that keeping in view the fact that he is a poor man and has to support his family and the quantity of contraband recovered from him is below the commercial quantity, the sentence be reduced to the period already undergone by him.

Learned State counsel has placed on record a reply by way of affidavit dated 3rd April, 2011 of the Superintendent, District Jail, Karnal, according to which the Appellant had undergone 03 months and 26 days of sentence as on 3.4.2011. He submits that in case conviction of the Appellant is maintained, the court may reduce the sentence as deemed appropriate in the circumstances of the case.

I have heard learned Counsel for both the parties.

Briefly, the prosecution case runs thus:

On 2nd April, 2008, ASI Mukesh Kumar along with other police officials was present in front of shop of Ramji Lal, Halwai on railway road, Gharaunda. A person was seen coming from the side of Bus Stand, G.T. Road, carrying a white plastic bag in his hand. On seeing the police party, he turned back hurriedly but was apprehended on suspicion. He disclosed his name as Dharam Pal alias Dhamma (Appellant herein). The white plastic bag was checked from which poppy husk was recovered. Weighing material was arranged. Two samples of 100 grams each were separated from the poppy husk in the bag and the remaining poppy husk was weighed. The samples and the bag were duly sealed and taken into police possession. The accused along with the case property and witnesses was produced before Inspector/SHO, who verified the facts and affixed his seal ''KK'' on the sample parcels and the case property. On 3rd April, 2008, disclosure statement of accused was recorded to the effect that he was addicted to consuming poppy husk and was also engaged in the business of selling poppy husk. He had purchased 8 Kgs 250 grams poppy husk from Salinder Kumar alias Kala of Karmali Mohalla, Gharaunda, who brought poppy husk from Gawalior and sold the same. He had consumed some amount of poppy husk and was apprehended with the remaining. Salinder Kumar alias Kala had also been apprehended by CIA-II, Karnal and was arrested. His disclosure statement was also recorded to the effect that for some time, he had been bringing poppy husk from Gwalior which he sold in Gharaunda and on 1.4.2008, he brought 20 Kgs poppy husk from Gwalior, out of which he sold 1 Kg 750 grams poppy husk to an unknown passenger and brought the remaining to Gharaunda. That day, he sold 8 Kgs 250 grams poppy husk to Dharam Pal alias Dhamma accused/Appellant. After completion of investigation and on receipt of report of chemical examiner, the accused was sent up for trial.

Finding a prima facie case u/s 15 of the NDPS Act, 1985 charge was framed against the accused/Appellant to which he pleaded not guilty and claimed trial.

To substantiate its case against the accused/Appellant the prosecution examined as many as six witnesses and submitted report of FSL Ex.PX.

The statement of accused u/s 313 Code of Criminal Procedure was recorded, wherein the incriminating evidence available on record was put to him. He refuted the incriminating circumstances and pleaded false implication. In defence, the accused examined Ramesh Juneja as DW1.

On the basis of the evidence on record, the learned trial court held the Appellant guilty of the charge framed against him and sentenced him as already indicated above.

On a perusal of the impugned judgment of the court below, I am of the considered view that the trial court has rightly appreciated the evidence on record while holding the Appellant guilty of the charge framed against him. There is no infirmity or illegality in the findings given by the court below. The conviction of the Appellant is, thus, affirmed.

Even counsel for the Appellant, during the course of argument, has not assailed the judgment of conviction. He has, however, pleaded for reduction in the quantum of sentence on the ground that the Appellant is poor person and main bread winner of his family.

Keeping in view facts and circumstances of the case, as also the fact that the Appellant is the sole bread winner of the family, I deem it fit to reduce his substantive sentence to the period already undergone by him. The fine imposed by the trial court is, however, enhanced from Rs. 5,000/- to Rs. 10,000/-. Ordered accordingly.

The fine be deposited within three months from the date of receipt of certified copy of this order. However, in case fine aforesaid is not deposited within the stipulated period, the modification in quantum of sentence shall stand withdrawn and the Appellant shall undergo the remaining period of sentence as awarded by the trial court.

Except with the modification in the quantum of sentence and fine, as indicated hereinabove, the appeal stands dismissed.