Surendra Kumar vs State Of Rajasthan

Instant criminal appeal has been filed by the appellant under Section 374(2) Cr.P.C. against the judgment dated 14.09.2011 passed by learned Special Judge, NDPS Cases, Hanumangarh in Session Case No. 15/2009 by which the learned Judge convicted the appellant for offence under Section 8/18(c) NDPS Act and sentenced him to undergo four years' R.I. alongwith fine of Rs.40,000/- and in default of payment of fine to undergo one year's R.I.

Brief facts of the case are that on 27.03.2009, Shri Abdul Qum, SHO PS Hanumangarh Junction along with other police party members made a Nakabandi at Abohar Road, Bus Stand Hirnawali for checking the vehicles passing through that route. At about 3:30 PM a Jeep (Dala) came there and on direction to stop the Jeep, the driver stopped the Jeep (Dala) at a distance of 50 mtr. away from the Nakabandi and two persons sitting in the said Jeep trying to run away and out of them one person was caught by the Police. On asking, he told his name as Surendra Kumar and the name of the person who had run away was told as Sumer Jat. On search a plastic bag containing one kg opium was recovered from the appellant and the appellant was arrested by the Police. The Police registered the FIR for offence under Section 8/18 NDPS Act and started investigation. After investigation, the police filed challan against the present appellant for offence under Section 8/18 NDPS Act. Thereafter, the charges of the case were framed against the appellant. He denied the charges and claimed trial.

During the course of trial, the prosecution examined 8 witnesses and various documents were also exhibited. Thereafter, statement of appellant under section 313 Cr.P.C was recorded. On witness was examined on the defence side.

Upon conclusion of the trial, the learned trial court vide impugned judgment dated 14.09.2011 convicted and sentenced the appellant for offence under Section 8/18(c) 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 recovered contraband is below commercial quantity and the occurrence relates back to year 2009 and the appellant has so far suffered a sentence of more than two years and seven months out of total sentence of four 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 8/18(c) 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 recovered contraband is below commercial quantity and the incident relates back to the year 2009 and the appellant has so far undergone a period of more than two years and seven months incarceration out of the total four 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 8/18(c) NDPS Act is reduced to the period already undergone by him while maintaining the amount of fine in the sum of Rs. 40,000/-.

Accordingly, the appeal is partly allowed. While maintaining the appellant's conviction and sentence for offence under Section 8/18(c) NDPS Act, the sentence awarded to him is reduced to the period already undergone by him, however the amount of fine is hereby maintained. However, the appellant has already deposited the fine amount in compliance of the order of this Court passed on 09.11.2011. Appellant is on bail. His bail bonds stand discharged.

The record of the trial court be sent back forthwith.