Nishabar Singh vs State of Haryana

Rajan Gupta, J.—This is an appeal against the judgment of conviction dated 29th November, 2010 and order of sentence dated 3rd December, 2010, delivered by Special Court, Karnal. The trial court after recording the prosecution evidence, came to the conclusion that the accused/Appellant was guilty of possession of contraband (i.e. 9 Kgs of poppy husk). He was convicted u/s 15(b) of the Narcotic Drugs & Psychotropic Substances Act, 1985 and sentenced to undergo RI for one year and five months and to pay a fine of Rs. 10,000/-, in default whereof to further undergo RI for three months.

Feeling aggrieved against the judgment of the trial court, the Appellant has approached this Court through the instant appeal.

Learned Counsel for the Appellant states that he is limiting his prayer only to the extent of reduction in the sentence awarded and does not assail the judgment of conviction. Learned Counsel has submitted that the Appellant is a 65 years old and poor man and sole bread winner of his family. According to him, in the present case the quantity of poppy husk recovered from the possession of the Appellant is much below the commercial quantity and out of the total awarded sentence of one year, by now he has undergone more than four months. Learned Counsel, therefore, prays that keeping in view the fact that he is a poor old man and has to support his family and the quantity of contraband recovered from him is below the commercial quantity, the sentence be reduced to the period already undergone by him.

Learned State counsel had placed on record a reply by way of affidavit of the Superintendent, District Jail, Karnal, according to which the Appellant had undergone 03 months and 23 days of sentence as on 30.1.2011. He submits that in case conviction of the Appellant is maintained, the court may reduce the sentence as deemed appropriate in the circumstances of the case.

I have heard learned Counsel for both the parties.

Briefly, the prosecution case runs thus:

On 21st May, 2007, S.I. Nand Kishore along a police party was patrolling in the area of Assandh-Safidon road and reached near katcha path leading towards village Danoli. A person was seen coming from the side of Danoli carrying a plastic "katta" on his shoulder. On seeing the police, he turned back hurriedly, upon which he was apprehended on suspicion. He disclosed his name to be Nishabar Singh. A notice Ex.P6 u/s 50 of the Act was issued and in reply to the notice, he reposed faith in him for taking search of the plastic "katta". On checking, poppy husk was recovered. Two samples of 100 grams each were separated and the remainder was found to be 8 Kgs 800 grams of poppy husk. The remainder was put in the same "katta". Both the sample parcels and remainder were converted into separate sealed parcels and sealed with seal of "NK". The entire case property was taken into police possession vide recovery memo Ex.P8. After completion of investigation and on receipt of report of chemical examiner Ex.P3, the accused was sent up for trial.

Finding a prima facie case u/s 15 of the NDPS Act, charge sheet was framed against the accused/Appellant to which he pleaded not guilty and claimed trial.

To substantiate its case against the accused/Appellant the prosecution examined as many as seven witnesses.

The statement of accused u/s 313 Code of Criminal Procedure was recorded, wherein the incriminating evidence available on record was put to him. He refuted the incriminating circumstances and pleaded false implication. However, he did not produce any evidence in his defence.

On the basis of the evidence on record, the learned trial court held the Appellant guilty of the charge framed against him and sentenced him as already indicated above.

On a perusal of the impugned judgment of the court below, I am of the considered view that the trial court has rightly appreciated the evidence on record while holding the Appellant guilty of the charge framed against him. There is no infirmity or illegality in the findings given by the court below. The conviction of the Appellant is, thus, affirmed.

Even counsel for the Appellant, during the course of argument, has not assailed the judgment of conviction. He has, however, pleaded for reduction in the quantum of sentence on the ground that the Appellant is old and poor person and main bread winner of his family.

Keeping in view facts and circumstances of the case, as also the fact that the Appellant is an old man and sole bread winner of the family, I deem it fit to reduce his substantive sentence to six months R.I. The fine imposed by the trial court is, however, enhanced from Rs. 10,000/-to Rs. 15,000/-. Ordered accordingly.

The fine be deposited within three months from the date of receipt of certified copy of this order. However, in case fine aforesaid is not deposited within the stipulated period, the modification in quantum of sentence shall stand withdrawn and the Appellant shall undergo the remaining period of sentence as awarded by the trial court.

Except with the modification in the quantum of sentence and fine, as indicated hereinabove, the appeal stands dismissed.