Kamlesh @ Raju Lal vs State Of Rajasthan

Instant appeal has been filed by the appellant challenging the judgment dated 30.03.2011 passed by the learned Special Judge, N.D.P.S Act Cases, Jodhpur in Criminal Sessions Case No.57/2004, by which the learned trial court convicted and sentenced the appellant for offence under Section 8/18 N.D.P.S. Act to undergo four years' rigorous imprisonment and to pay a fine of Rs.10,000/-; in default of payment of fine, to further undergo one month's additional rigorous imprisonment.

Briefly stated facts of the case are that on 01.01.2004 at about 11:15 AM, the S.H.O. of Police Station Desuri, District Pali received a secret information about selling of opium by the appellant-Raju Lal @ Kamlesh nearby Rotalao Chouraha, Desuri. On the basis of the said information, after necessary proceedings, the police party reached nearby a cabin of Popat Lal Dhobi at about 11:50 AM, where a person was standing there, who after seeking the police party tried to ran away. The police party caught hold him and upon enquiry, he disclosed his name as Raju Lal @ Kamlesh. Upon his search, the police recovered 600 gms. of opium from his possession for which he had no licence or permit. The police registered a case and started investigation. After investigation, the police filed challan against the appellant for offence under Section 8/18 NDPS Act. Thereafter, charges of the case were framed against the accused-appellant, who denied the charges and claimed trial.

During the course of trial, the prosecution examined eight witnesses and various documents were also exhibited. Thereafter, statement of appellant under section 313 Cr.P.C was recorded. No witness was examined on the defence side.

After considering the material available on record, the learned trial court convicted the appellant-accused for offence under Section 8/18 NDPS Act vide order dated 30.03.2011 and sentenced him, as stated above. Hence, this criminal appeal.

At the threshold, learned counsel for the appellant does not want to challenge the finding of conviction but submits that the recovered contraband is below commercial quantity. The accused-appellant has already undergone more than five months imprisonment out of total imprisonment of four years and also suffered mental agony and trauma since 2004, therefore, 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.)

Per contra, the learned Public Prosecutor has supported the judgment and order passed by the court below and submitted 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.

I have perused the evidence of the prosecution as well as defence and the judgments passed by both the courts below. Indisputably, the recovered contraband is below commercial quantity. The incident relates back to the year 2004 and the appellant has so far undergone a period of more than five months imprisonment out of total four years' imprisonment, so also suffered the agony and trauma of protracted trial. As per material available on record, it appears that the recovery in question was appellant's first offence. Thus, looking at the over-all circumstances, this Court is of the opinion that ends of justice would be met if the substantive sentence of imprisonment awarded by the trial court for offence under Section 8/18 NDPS Act is reduced to the period of imprisonment already undergone by the appellant while maintaining the amount of fine in the sum of Rs.10,000/-.

Accordingly, the criminal appeal is partly allowed. While maintaining the appellant's conviction for offence under Section 8/18 NDPS Act, the sentence awarded to him is hereby reduced to the period already undergone by him. However, the amount of fine is hereby maintained. In default of payment of fine, the appellant shall undergo one month's 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 trial court be sent back forthwith.