Sewak Singh vs State Of Rajasthan

Instant criminal appeal has been filed by the appellant under Section 374(2) Cr.P.C. against the judgment dated 29.09.2011 passed by learned Special Judge, NDPS Cases, Hanumangarh in Sessions Case No. 25/2009 by which the learned Judge convicted the appellant for offence under Section 8/15 NDPS Act and sentenced to undergo two and half years R.I. alongwith fine of Rs.25,000/-, in default of payment of fine to undergo six months' R.I.

Brief facts of the case are that on 25.07.2009, Sanjay Bothra, SHO PS Hanumangarh Towan, apprehended the accused appellant Sewak Singh and recovered 12 KG 100 Gram Poppy husk in a bag on his shoulder, out of which 2 sample of 500-500 gram were taken and arrested the accused-appellant. Thereafter the police registered a case against the accused-appellant being FIR No.548/2009 for offence under Sections 8/15 of NDPS Act and started investigation. After completion of investigation, the police filed challan against the present appellant for offence under Sections 8/15 of NDPS Act. Thereafter, the charges were framed against the appellant. He denied the charges and claimed trial.

During the course of trial, the prosecution examined 5 witnesses and various documents were also exhibited. Thereafter, statement of appellant under section 313 Cr.P.C was recorded.

Upon conclusion of the trial, the learned trial court vide impugned judgment dated 29.09.2011 convicted and sentenced the appellant for offence under Section 8/15 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 occurrence relates back to year 2009 and in the present case 12 kg 100 gram Poppy husk was recovered from the appellant which is below commercial quantity and further the appellant has so far suffered a sentence of more than two years & three months out of total sentence of two and half years, 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 8/15 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 occurrence relates back to year 2009 and 12 KG 100 Gram Poppy husk was recovered from the appellant which is below commercial quantity and the appellant has so far undergone a period of more than two years and three months incarceration out of the total two and half years' 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 8/15 NDPS Act is reduced to the period already undergone by him while maintaining the amount of fine in the sum of Rs. 25,000/-.

Accordingly, the appeal is partly allowed. While maintaining the appellant's conviction and sentence for offence under Section 8/15 NDPS Act, the sentence awarded to him is reduced to the period already undergone, however the amount of fine is hereby maintained. In default of payment of fine, the appellant shall undergo six months' 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.