Rajesh Kumar vs State of Haryana

Sabina, J.—Accused-Rajesh Kumar was convicted for an offence under Sections 17(b) and 18(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (''the Act'' for short) vide judgment dated 25.1.2008 passed by the Judge Special Court, Ludhiana. Vide order dated 28.1.2008 accused was sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 10,000/-under Section 17(b) of the Act and he was further order to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 2000/-under Section 18(c) of the Act. Hence, the present appeal by the Appellant-accused.

The case of the prosecution, as noticed by the trial Court in para 2 of its judgment, is reproduced here in below:

On 18.7.2004 ASI Zile Singh CIA Staff along with ASI Fateh Singh, Head constable Randhir Singh, Constable Yashpal and constable Rakesh was present at Kaithal Chowk Assandh in the Government vehicle bearing registration No. HR-05L-1734 in connection with patrolling duty, where he received a secret information to the effect that accused Rajesh son of Jeet Ram resident of Assandh was indulging and selling of opium in his house and if a raid is conducted the opium as well as milk can be recovered from his house. ASI Zile Singh on finding the information to be true informed DSP Ashok Kumar on his telephone at his resident and after informing he along with police party reached the house of accused Rajesh. Accused was apprehended while escaping from his house and told his name as Rajesh son of Jeet Ram. Thereafter, a notice Ex.P5 u/s 50 of the NDPS Act was given to him apprising him of his right to get his house to be searched before a Magistrate or Gazetted Officer. The accused after signing the notice opted to give the search of his house in the presence of Gazetted Officer. The accused gave reply Ex.P6 in which he opted to give search of his house in the presence of Gazetted Officer. The notice Ex.P5 and reply Ex.P6 were attested by ASI Fateh Singh and HC Randhir Singh. Thereafter, ASI Zile Singh contacted DSP Ashok Kumar who immediately reached the place and on his directions the search of the house of accused was conducted by police party. ASI Zile Singh found opium milk in yellow polythene and opium wrapped in black polythene from a iron box lying on the slab of Criminal Appeal No. 764-SB of 2008 room situated towards Eastern side. Out of which two samples 20 grams each were separated and remaining opium milk was 1 kg 860 grams and opium was 210 grams and both were put in polythene bags. The samples as well as the remainder were made into separate parcels and were sealed with the seal ZS. DSP Ashok Kumar put his seal AK on the samples as well as on the remainder. The case property was taken into possession vide recovery memo Ex.P7 and the same was attested by ASI Fateh Singh and HC Randhir Singh. ASI Zile Singh handed over his seal to ASI Fateh Singh whereas DSP retained his seal with him. Thereafter, written information Ex.P14 was sent to the police station on the basis of which formal FIR Ex.P15 was registered by ASI Satya Parkash. He has also prepared rough site plan of the place of recovery vide Ex.P16. Memo Ex.P17 regarding arrest of accused was also prepared. Thereafter, he produced accused Rajesh alongwith witnesses and case property before Hari Kailash Inspector, the then SHO, Police Station, Assandh and who after having enquired the facts of the case from the witnesses affixed his seal on the sample parcel and remainder parcels of the case property and thereafter on the direction of SHO Hari Kailash the case property was deposited with the MHC and accused was detained in the lock up.

Learned Counsel for the Appellant, during the course of arguments, has not challenged the conviction of the Appellant under Sections 17(b) and 18(c) of the Act but has submitted that the sentence qua imprisonment of the Appellant be reduced to already undergone by him. Learned Counsel has further submitted that the Petitioner is the only bread earner of the family.

As per the custody certificate placed on record by the learned State counsel, the Appellant has undergone two years of actual sentence.

Learned State counsel, who is assisted by ASI Ram Narain has submitted that in the FIR No. 71 dated 24.2.2007 registered against the Appellant u/s 18 of the Act at Police Station Sadar Karnal, the Appellant has since been acquitted by the Judge, Special Court Karnal vide judgment dated 3.6.2010.

Keeping in view the facts and circumstances of this case, it would be just and expedient to reduce the sentence qua imprisonment of the Appellant to already undergone by him .

Accordingly, the conviction of the Appellant under Sections 17(b) and 18(c) of the Act is maintained. However, the sentence qua imprisonment of the Appellant is reduced to already undergone by him. Fine, as imposed by the trial Court, if not deposited, be deposited by the Appellant within two months from today failing which this appeal shall stand dismissed.

Appeal stands disposed of accordingly.