Ushnak Mohammad vs State

Manoj Kumar Garg, J

An application (01/2024) has been filed by the appellant seeking exemption from his personal appearance before trial Court in the month of January, 2024.

For the reasons and on the grounds as mentioned in the application, the application is allowed.

Instant criminal appeal has been filed by the appellant under Section 374(2) Cr.P.C. against the judgment dated 07.12.2020 passed by learned Special Judge, NDPS Act Cases, District Hanumangarh in Sessions Case No.25/2017 by which the learned Judge convicted the appellant for offence under Section 8/15 of NDPS Act and sentenced him to undergo one year’s R.I. alongwith a fine of Rs.10,000/- and in default of payment of fine, to undergo one month’s R.I. Brief facts of the case are that on 02.06.2017, SHO, Police Station Sadar Hanumangarh, alongwith patrolling team went to Jandawali for patrolling. At about 8 PM, they saw a person carrying a bag with him, who tried to flee on seeing the police party. The Police team followed him and caught hold of the person. On inquiry, he disclosed his name as Ushnak Mohammad S/o Shareef Mohammad, who is the appellant in this case. Upon search, 1 kg 200 gms poppy husk was recovered from the appellant without any valid licence and permit.

The police registered the FIR for offence under Section 8/15 NDPS Act and started investigation. After investigation, the police filed challan against the present appellant. Thereafter, the charge for offence under Section 8/15 of NDPS Act was framed by the trial court against the appellant, who denied the charges and claimed trial.

During the course of trial, the prosecution examined seven prosecution witnesses and various documents were also exhibited. Thereafter, statement of appellant under section 313 Cr.P.C was recorded. No witness was examined on the defence side.

Upon conclusion of the trial, the learned trial court vide impugned judgment dated 07.12.2020 convicted and sentenced the appellant for offence under Section 8/15 of 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 2017 and the appellant has so far suffered a sentence of about 15 days, out of total sentence of one year, 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.

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.

Undisputedly, the incident relates back to the year 2017 and the appellant has so far undergone a period of 15 days’ incarceration out of the total sentence of one year’s R.I. so also suffered the mental 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 some time, it will be just and proper if the sentence awarded by the trial court for offence under Section 8/15 of NDPS Act is reduced to the period already undergone by him.

Accordingly, the appeal is partly allowed. While maintaining the appellant’s conviction for offence under Section 8/15 NDPS Act, the sentence awarded to him is reduced to the period already undergone. The amount of fine imposed by the trial Court, if not already deposited by the appellant, then three months’ time is hereby granted to deposit the fine amount before the trial Court. In default of payment of fine, the appellant shall undergo one month’s S.I. The appellant is on bail. He need not surrender. His bail bonds stand discharged.

The record of the trial court be sent back forthwith.