Prem Narain Gupta vs State NCT of Delhi

S.P. Garg, J.—The appellant-Prem Narain Gupta has preferred the present appeal against the judgment dated 07.04.2011 and order on sentence dated 13.04.2011 of learned Additional Sessions Judge by which he was convicted committing offence punishable u/s 21(b) NDPS Act and sentenced to undergo rigorous imprisonment for four years with fine of Rs. 25,000/-. The appellant-Prem Narain Gupta and Bhagwati Prasad (since acquitted) were apprehended on 21.10.2004 at about 11.15 a.m., at main gate of Sheela cinema, Nabi Karim by the police officials of Narcotics Branch. As the appellant was found in possession of 500 grams of hero in, both Prem Narain Gupta and Bhagwati Prasad were arrested. After completion of investigation, a charge-sheet was submitted against them. On 06.07.2005 the appellant was charged for having committed offence punishable u/s 21 read with Section 29 NDPS Act. Bhagwati Prasad was charged to have conspired with the appellant-Prem Narain Gupta for possession of 500 grams of heroin. The prosecution examined ten witnesses in all to prove the charge. After hearing the counsel for the parties and appreciating the evidence on record, the Trial Court by the impugned judgment acquitted Bhagwati Prasad and convicted appellant-Prem Narain Gupta for the offence previously described. Being aggrieved, the appellant has preferred the present appeal.

During the course of hearing of the appeal on merits, learned counsel for the appellant on instruction from the appellant-Prem Narain Gupta stated that the appellant has opted not to challenge the conviction u/s 21(b) NDPS Act. Prayer was made to modify the order on sentence as the appellant has already remained in incarceration for two years and nine months. The appellant is not a previous convict. Learned Addl. Public Prosecutor has stated that the Trial Court has already taken lenient view and order on sentence requires no modification.

I have heard the learned counsel for the parties and have examined the Trial Court record. Since the appellant has opted not to challenge the findings on conviction, the order on conviction stands upheld.

Regarding order on sentence, it transpires that the appellant was found in possession of 500 grams of heroin and as per the FSL report the contraband tested positive for diacetyl morphine and the extent of the same was 28.45% (142 grams.) During the course of the trial again the sample was drawn and sent to Central Revenue Control Laboratory, New Delhi and as per its report dated 13.11.2009, the sample contained morphine. This time the percentage was 4.2% i.e. 21 grams. Nominal roll dated 13.09.2011 reveals that the appellant has already remained in custody for 1 year 6 months and 01 day as on 13.09.2011. The period has increased to about two years and nine months. If further reveals that the appellant is not a previous convict and is not involved in any other criminal case. His overall jail conduct is satisfactory. Considering all these facts and circumstances of the case, the order on sentence requires to be modified. Accordingly, the order on sentence is modified and the substantive sentence of appellant of four years rigorous imprisonment is reduced to three years rigorous imprisonment. Other sentence remains undisturbed.

The appeal filed by the appellant is disposed of in the above terms. Pending application also stands disposed of. A copy of the order be sent to Jail Superintendent, Tihar Jail. Copy be also sent to the accused/appellant through Jail Superintendent. Trial Court record along with a copy of this order be sent back to the Trial Court.