Ghanshyam Jha vs The State of Bihar

Ghanshyam Prasad, J.—The sole appellant has preferred this appeal against the judgment and its order dated 18th August, 2003 passed by 1st Additional Sessions Judge-cum-Special Judge, Araria in Special Case No. 21 of 1998, Trial No. 2 of 1999. The appellant has been convicted u/s 20(b) of the N.D.P.S. Act, 1985 (hereinafter referred to as the Act) and has been sentenced to undergo R.I. for five years and also to pay tine of Rs. 50,000/- and in default to undergo R.I. for three years. It appears that on receipt of confidential report, the S.I. Police of Simraha Police Station raided the house of this appellant on 12.3.1998 and on search, 2 Kgms. of ganja was recovered from the house of the appellant. Ultimately, the appellant was put on trial and charge u/s 20(b) of the N.D.RS. Act, 1985 was framed against him.

In course of the trial, the prosecution examined altogether 13 witnesses including the informant. Ultimately vide the impugned judgment, the appellant has been convicted and sentenced in a manner said above.

In course of hearing, the Learned Counsel for the appellant confined his submission only on the point of sentence. He did not challenge the finding of guilt to the appellant u/s 20(b) of the Act. The submission of the Learned Counsel is that the appellant has already sufferred imprisonment more than the sentence awarded by the learned lower court. The court below has sentenced the appellant to undergo R.I. for five years and also to further undergo R.I. for three years in default of payment of fine. This appellant is in jail custody since the date of his arrest i.e. 12.3.1998. In other words, he has already remained in jail custody for about nine years. Therefore, no purpose will be served to decide this case on merit.

this Court finds truth in submission of the Learned Counsel for the appellant. The record clearly goes to show that this appellant has already remained in jail custody for more than the total period of sentence awarded by the court below. In the result, this appeal is allowed in part as mentioned above and the sentence awarded to the appellant is hereby modified to the extent of period already undergone by the appellant in jail custody It is submitted that the appellant has not yet been released on the basis of Section 428 Cr.P.C. which provides set-off in the sentence of the period of detention undergone by the accused during investigation, enquiry or trial. Therefore, if the appellant has not yet been released on the basis of Section 428 Cr.P.C. he shall be released forthwith if not wanted in any other case and in that event, the court below shall enquire into the matter and take appropriate action in accordance with law against the erring officers of jail concerned.