Mohammad Nawaz @ Kaka vs State Of Rajasthan

Instant criminal appeal has been filed by the appellant under Section 374(2) Cr.P.C. against the judgment dated 15.02.2011 passed by learned Special Judge (NDPS Cases), Hanumangarh in Sessions Case No. 34/2006 by which the learned Judge convicted the appellant for offence under Section 8/21B NDPS Act and sentenced him to undergo six months' R.I. alongwith fine of Rs.5,000/- and in default of payment of fine to undergo one month's R.I.

Brief facts of the case are that on 28.03.2006, SHO Police Station Hanumangarh Junction received an information that a person namely Mohd. Nawaz @ Kaka is standing near Chando Sansi Brick Kiln at Jandawali on Sri Ganganagar Road and is carrying smack which is to be delivered to some customer. After receiving the information the SHO along with Police party reached at Agrasen Chowk where he also carried two independent witnesses namely PW-1 Gurdeep Singh and PW-2. Kuldeep Singh. After reaching at the spot the appellant was standing on the way and on searching him the contraband weighting 7 gms. of smack was recovered from his right pocket. Thereafter the Police arrested the appellant and registered the FIR for offence under Section 8/21 NDPS Act and started investigation. After investigation, the police filed challan against the present appellant for offence under Section 8/21 NDPS Act. Thereafter, the charges of the case were framed against the appellant. He denied the charges and claimed trial.

During the course of trial, the prosecution examined 10 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.

Upon conclusion of the trial, the learned trial court vide impugned judgment dated 15.02.2011 convicted and sentenced the appellant for offence under Section 8/21B NDPS Act as mentioned earlier.

At the threshold, learned counsel for the appellant does not challenge the finding of conviction but it is submitted that since the recovered contraband is below commercial quantity and the occurrence relates back to year 2006 and the appellant has so far suffered a sentence of 47 days out of total sentence of six months, therefore, it is prayed that the substantive sentence awarded to the appellant for the aforesaid offence may be reduced to the period already undergone by him. In support of his 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.)

On the other hand, the learned Public Prosecutor opposed the submissions made by the learned counsel for the appellant. The learned PP submitted that 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.

Since the appellant's counsel does not challenge the appellant's conviction, this Court need not go into the merits of the case and accordingly, the conviction of the appellant as recorded by the learned trial court for the offence under Section 8/21B NDPS Act is maintained.

I have perused the evidence of the prosecution as well as defence and the judgment passed by the trial court regarding conviction of the accused-appellant. It is not disputed that the recovered contraband is below commercial quantity and the incident relates back to the year 2006 and the appellant has so far undergone a period of 47 days incarceration out of the total six months' rigorous imprisonment so also suffered the agony and trauma of protracted trial. Thus, looking to the over-all circumstances and the fact that the appellant has remained behind the bars for considerable time, it will be just and proper if the sentence awarded by the trial court for offence under Section 8/21 NDPS Act is reduced to the period already undergone by him while maintaining the amount of fine in the sum of Rs.5,000/-.

Accordingly, the appeal is partly allowed. While maintaining the appellant's conviction and sentence for offence under Section 8/21 NDPS Act, the sentence awarded to him is 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 the trial court be sent back forthwith.