Islamuddin vs State of U.P.

Virendra Kumar Dixit, J.—By this appeal, the Appellant Islamuddin seeks to challenge the judgment and order dated 01.10.1997 passed by the learned Second Additional Sessions Judge, Barabanki in Criminal Trial No. 165 of 1991, whereby the Appellant has been held guilty of the charge under Sections 8/21 N.D.P.S. Act and thereby sentenced to undergo 15 years rigorous imprisonment and a fine of Rs. 1,00,000/- and in default of payment to undergo one year''s further rigorous imprisonment.

Thumbnail sketch of the facts of the case is as mentioned herein below:

That on 23.08.1991 at about 4.30 p.m. at village Jamuniadeeh near Police Station Jaidpur District Barabanki one kilogram unauthorized morphine was recovered from the possession of accused-Appellant Islamuddin. After investigation, charge sheet was filed u/s 8/21, N.D.P.S. Act against the accused-Appellant namely Islammuddin.

On 20.02.1992, the learned Sessions Judge framed charge against the accused-Appellant u/s 8/21 N.D.P.S. to which he pleaded not guilty and claimed to be tried.

The prosecution in support of its case examined five witnesses, namely P.W.1. Sri Rajednra Singh Sangar, S.O. Special Research Branch, Kaisarbagh District Lucknow, P.W.2 Sri Jilaljeet constable Police Station Zaidpur District Barabanki, P.W.3 Sri Komal Nath Singh, Constable P.S. Rudoli District Barabanki, P.W.4 Investigating Officer, Sri Sukhram Yadav, Sub Inspector. P.S. Zaidpur District Barabanki and P.W. 5 Constable Sri Ambika Yadav. The learned trial court also examined C.W. Sri M.N. Tiwari, Scientific Officer, 2 Forensic Laboratory, Mahanagar, Lucknow as court witnesses.

One witness namely D.W.1 Mohd. Sohrabar, has been produced by the defence.

The accused in his statement u/s 313 Code of Criminal Procedure has denied the incriminating evidence appearing against him. He pleaded that he has been implicated in a false case due to enmity.

Learned court below heard arguments from both the side and after examining the entire oral and documentary evidence on record reached to the conclusion that the charge u/s 8/21 N.D.P.S. Act has been duly proved by the prosecution on the basis of the evidence adduced, and convicted and sentenced the Appellant in the aforesaid manner.

Heard learned Counsel for the Appellant and learned A.G.A. and perused the lower court record.

Learned Counsel for the Appellant confines his argument to the point of quantum of sentence only, therefore, this Court is not adverting to the other grounds mentioned in the memo of appeal. This Court is also not referring to the oral evidence which is available on record in respect of the charge in question.

In respect of the quantum of sentence, learned Counsel for the Appellant makes the following submissions:

(i) The accused-Appellant was granted bail and enjoyed the liberty of bail from on 02.11.1992 till 30.09.1997 when the judgment was pronounced and he was found guilty. During the period he remained on bail he did not misuse his liberty and it was his first crime.

(ii) From the date of judgment i.e. 01.10.1997 he is languishing in jail. Prior to it he also remained in jail from the date of arrest till 02.11.1992. As such he has already undergone a total period of more than 14 years.

(iii) During the pendency of appeal the Appellant was 3 granted bail vide order dated 14.01.2003 but due to poverty he could not arrange for surety and is languishing in jail since October, 1997.

(iv) Learned Counsel for the accused-Appellant requests that the period of imprisonment be reduced to the period already undergone so that he may come out from jail and earn livelihood for his family members.

Learned A.G.A. has nothing to say against the aforesaid submissions.

Keeping in view of the aforesaid submission, while upholding the conviction of the Appellant u/s 8/21 N.D.P.S. Act, his sentence is modified as under:

The sentence awarded by learned trial court "to undergo 15 years rigorous imprisonment with a fine of Rs. 1,00,000/-(One lakh) and in default of payment of fine one year''s further rigorous imprisonment" is hereby modified as "to undergo 12 years'' rigorous imprisonment with a fine of Rs. 1,00,000/-(One lakh) and in default of payment of fine, one year''s further rigorous imprisonment.

Barring the aforesaid modification the appeal stands dismissed. The Appellant is in jail. He shall be released from jail, if he has served the sentence as modified above and further if he is not wanted in any other case.

The lower court record along with a copy of this judgment be remitted to the court concerned at once through Registrar of this Court, for compliance. A copy of this judgment be sent by the Registrar of this Court to the Superintendent of jail concerned.