Khuma Ram vs State Of Rajasthan

Instant appeal has been filed by the appellant challenging the judgment dated 09.02.2011 passed by the learned Special Judge, N.D.P.S Cases, Jodhpur in Criminal Sessions Case No.126/2006, by which the learned trial court convicted and sentenced the appellant for offence under Section 8/17 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 additional rigorous imprisonment.

Briefly stated facts of the case are that on 18.06.2006, Daidan Singh, the patrolling officer of E.P.F. Barmer while on duty received a secret information and on the basis of the said information, he along with the police-party rushed to Bhusteshwar Mahadev Hotel situated at Sindhari Road of Jhalikhera village, which was said to be in the possession of the appellant and upon search, opium weighing 850 gms was recovered from a box lying under the earth. The police registered a case and started investigation. After investigation, the police filed challan against the appellant for offence under Section 8/17 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 six witnesses and various documents were also exhibited. Thereafter, statement of appellant under section 313 Cr.P.C was recorded. No witness was produced on the defence side.

After considering the material available on record, the learned trial court convicted the appellant/accused for offence under Section 8/17 NDPS Act vide order dated 09.02.2011 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 only 850 gms. opium was recovered in the instant case, which is below commercial quantity. The accused-appellant has already undergone about two months imprisonment out of total imprisonment of four years and also suffered mental agony and trauma since 2006, 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 regarding conviction of the accused-appellant. Indisputably, the recovered contraband is below commercial quantity. The incident relates back to the year 2006 and the appellant has so far undergone a period of about two months imprisonment out of total four years imprisonment, so also suffered the agony and trauma of protracted trial. 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 8/17 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 8/17 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 court be sent back forthwith.