Raju alias Vicky vs State of Haryana

Rajan Gupta, J.—This is an appeal against the judgment of conviction dated 7th January, 2011 and order of sentence dated 8th January, 2011, delivered by Special Court, Panipat. The trial court after recording the prosecution evidence, came to the conclusion that the accused/Appellant was guilty of possession of contraband (i.e. 13 Kgs of poppy husk. He was convicted u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to be as "NDPS Act") and sentenced to undergo RI for one year and to pay a fine of Rs. 10,000/-, in default whereof to further undergo RI for two 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 poor person having old parents and minor children to maintain. According to him, in the present case the quantity of contraband (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, he had already undergone 05 months and 03 days. Learned Counsel, therefore, prays that keeping in view the fact that he has to support his parents and minor children 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 has placed on record a reply by way of affidavit dated 22nd March, 2011 of the Superintendent, District Jail, Karnal, according to which the Appellant had already undergone 03 months and 29 days of sentence as on 21.3.2011. 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 24th June, 2007, S.I. Suresh Kumar along with other police officials was present at Sukhdev Nagar turn, Panipat in connection with patrolling and crime detection. In the meantime, one person was seen coming from outer gate of bus stand having a white plastic Katta on his shoulder. On seeing the police party, he turned back and started walking briskly. On suspicion, he was apprehended and on enquiry he disclosed his name as Raju alias Vicky (Appellant herein).

Notice u/s 50 of the NDPS Act was served upon him giving him option to be searched either through some Gazetted Officer or some Magistrate. In reply, the accused/Appellant had opted to get his search conducted before S.I. Suresh Kumar. On search of the Katta plastic, poppy husk was found. On weighment, it was found to be 13 Kgs, out of which two samples of 200 grams each were separated and the same were converted into sealed parcels. The remaining contraband was also put in same plastic Katta and was also converted into sealed parcel. After completion of investigation and on receipt of report of chemical examiner, 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 five 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 as well as trial court record, 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 the main bread winner of his old parents and minor children.

Keeping in view facts and circumstances of the case, as also the fact that the Appellant is a poor man and has to support his parents and children, I deem it fit to reduce his substantive sentence to the period already undergone by him. However, the fine imposed by the trial court shall remain intact. Ordered accordingly.

The fine, if not deposited already, be deposited within three months from the date of receipt of certified copy of this order, failing which 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.