Shailendra Singh Parihar vs State of Madhya Pradesh

N.K. Gupta, J.—The appellant has preferred the present appeal against the judgment dated 29.12.2012 passed by the learned Special Judge under SC/ST (Prevention of Atrocities Act) in Special Case No. 3/2011, whereby he was convicted for the offences punishable under Sections 8/20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substance Act (hereinafter referred as "the N.D.P.S. Act") and sentenced for four years R.I. with fine of Rs. 1,000/-. In default of payment of fine, two months R.I. was also directed.

The prosecution''s case in short is that on 25.12.2010 an information was received by ASI D.P. Mishra of Police Station Kolgawan, District Satna that the appellant was transporting some Ganja for sale and therefore, by adopting all the procedures, he went to the spot alongwith the witnesses. He found two kgs. of Ganja with the appellant and therefore, various procedures like seizure, weighing of Ganja, sealing and taking the samples were adopted by the investigation officer and samples were sent to the Forensic Science Laboratory. In report of the Forensic Science Laboratory, it was found that the sample was of Ganja and therefore, a charge sheet was filed against the appellant.

The appellant abjured his guilt. He did not take any specific plea in defence and therefore, no defence evidence was adduced.

After considering the prosecution''s evidence, the learned Special Judge, Satna vide aforesaid judgment, convicted and sentenced the appellant as mentioned above.

I have heard the learned counsel for the parties.

Learned counsel for the appellant submits that for possession of one kgs. of Ganja, the maximum sentence of six months R.I. could be granted and therefore, the sentence for two kgs. of Ganja should be proportionate to that provision for such quantity. It was shown before the trial Court that seven cases were lodged against the appellant in the past but the learned Special Judge did not frame any charge u/s 75 of the IPC and it was not shown that the appellant was convicted in any of such offences therefore, no enhance sentence could be passed against the appellant. At present, the appellant had already remained in the jail for more than three years and therefore, it is prayed that his sentence may be reduced to the period for which he remained in the custody.

After considering the submissions made by learned counsel for the appellant and looking to the facts and circumstances of the case, it would be apparent that no previous conviction could be proved by the prosecution against the appellant and therefore, no enhanced sentence could be passed in the present case without framing any charge u/s 75 of the IPC. Looking to the quantity of Ganja, two years sentence was sufficient for the appellant, whereas he remained in the custody for more than three years. It is also informed that the appellant could not deposit the fine amount but he has already undergone for two months as a default sentence within the period for which he remained in the custody. Under such circumstances, it is a fit case in which the sentence of the appellant may be reduced.

On the basis of aforesaid discussion, the present appeal filed by the appellant is hereby partly allowed. His conviction for the offence under Sections 8/20(b)(ii)(B) of the N.D.P.S. Act is hereby maintained but his sentence is reduced to 21/2 years R.I. No change in the fine amount, whereas remaining custody period of the appellant shall be counted in the default sentence.

The appellant is in jail and therefore, office is directed to arrange for issuance of a Supersession warrant without any delay so that the appellant may be released from the jail immediately.

A copy of the judgment be sent to the trial Court alongwith its record for information and compliance.