-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Ishwar Singh & ors Vs. Union of India (1) S.B.CRIMINAL APPEAL NO.407/2002 Narcotics Control Bureau Vs. Rane Khan (2) S.B.CRIMINAL APPEAL NO.1317/2003 against the judgment dt.24.4.2002 passed by the Special Judge, NDPS Cases, Sirohi, in Special Case No.65/1998. Date of Judgment: July 18, 2008 P R E S E N T HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.B.S.Rathore, for accused appellants. Mr.L.R.Choudhary ) Mrs.Praveen Kaushal) for Union of India. BY THE COURT : 1. These are two appeals against the judgment of the learned Special Judge, NDPS Cases, Sirohi dt.24.4.2002, whereby he acquitted accused Rane Khan u/s.8/29 and Section 27A of the Narcotic Drugs & Psychotropic Substances Act, 1985, hereinafter -2- referred-to as “the Act” but convicted accused appellant Ishwar Singh u/s.8/21 and 25 of the Act & sentenced him to 10 years' R.I. & a fine of Rs.one lac and in default, to further undergo one year's R.I. on both the counts and accused appellants Senda Ram and Jerupa u/s.8/21 of the Act and sentenced each of them to 10 years' R.I. & a fine of Rs.one lac and in default, to further undergo one year's R.I. In the preceding para of the sentencing order, the learned Judge also ordered that the substantive sentences shall run concurrently. 2. The charges against the accused Ishwar Singh, Senda Ram & Jerupa were as under: First charge was that on 18.6.98, the heroin measuring 7.235 kgs. was recovered from a jeep being No.RPK 3828 on Revdar Mandar Road, for which they were having no valid licence, punishable u/s.8/21 of the Act; the second charge was about transportation of the heroin in the jeep punishable u/s.8/25 of the Act; third charge was that their colleague paid Rs.57,000/- per kilogram to one Alu Khan and helped financially in illegal trade of heroin punishable u/s.8/27A of the Act and fourth charge was that they obtained this heroin from Rane Khan, Alu Khan, Kalla Khan and Ramdan in June 1998 by paying Rs.four lacs in cash and conspired to sell heroin to Pilu Ram -3- Nayak and his colleagues and thereby committed offence u/s.8/29 of the Act. Accused Rane Khan was charged only u/s.8/27A and 29 of the Act. All the accused pleaded not guilty. The prosecution examined 11 witnesses. The statements of the accused were recorded u/s.313 CrPC. They produced four witnesses in their defence. After hearing the arguments, the learned trial Judge acquitted accused Rane Khan but convicted accused Ishwar Singh, Senda Ram and Jerupa as above. So far as the appeal against acquittal filed by Narcotics Control Bureau is concerned, the learned trial Judge has rightly observed that the statement of Rane Khan recorded u/s.67 of the Act vide Ex.P.53 on 8.7.98 by Kalyan Sahai Meena (PW 10) was not voluntary because the statement was recorded on 8.7.98 but the notice was issued to him earlier to notice Ex.P.52, which is Ex.P.50 on 24.6.98 by PW 8 Anuranjan Gupta. This witness has said that Rane Khan was sent with one constable of Barmer and he was not free to give the statement. He was again called on 6.7.98 but the statements were recorded on 8.7.98, therefore, the learned Judge rightly came to the conclusion that his statement was not voluntary and the same was recorded under duress. In this way, the finding of the learned trial Judge with regard to acquittal of Rane Khan requires no interference. -4- 3. So far as accused Ishwar Singh, Senda Ram and Jerupa are concerned, learned counsel for the appellants in the first instance argued the case on merits but at last, he submitted that accused have already undergone a sentence of more than ten years, awarded by the trial Court and there was no previous conviction against them and, therefore, instead of arguing the appeal on merits, he simply states that on account of their conviction, the department is trying to forfeit their immovable property i.e. field etc., whereas the recovery was made from the jeep, which has already been confiscated and for which, accused Ishwar Singh has been convicted u/s.8/25 of the Act. According to him, the charge against the accused is also about carrying the heroin recovered from Jeep being No.RPK 3828 opposite the well of Meghwal community, situated in between villages Magriwada and Barmana on Devdar Mandar Road. That apart, he submits that from the site plan Ex.P.13, it appears that the recovery has been made from the jeep at place `x' which is on the corner of the Mandar Road, Udaipur. The details of the site plan have been given in the panchnama Ex.P.14, in which it is also stated that the jeep RPK 3828 came from the Revdar Mandar Road in front of well of Meghwals and was stopped on the left side of the road, where two persons got down from the jeep and started moving nearby the jeep. Thereafter, after 10 minutes, one tractor also came and took one plastic bag from the tractor and kept it in the -5- jeep. Then the Narcotics Control Bureau party caught hold of three persons and recovered the contraband articles. He further submits that when all the five accused have been acquitted u/s.8 r/w Sec.27A & 29 of the Act, there is no reason to believe that accused are indulged in trade of narcotic drugs & they acquired property by illegal means. 4. Having seen these documents, it appears that the contention of the learned counsel for the appellants that the recovery has been made from the side of the road in a jeep, is well founded. Since the recovery is proved, therefore, so far as the confiscation of the vehicles i.e. jeep and tractor is concerned, the same cannot be questioned, as the contraband articles were found in those vehicles, for which accused Ishwar Singh has been convicted u/s.8 read with Sec.25 of the Act alongwith Section 21 of the Act. 5. The contention of the learned counsel for the appellants that the department is initiating proceedings for confiscating the immovable property of the accused i.e. field etc. on account of recovery being made from the field and indulging in illegal trade of narcotic drugs, acquired the immovable property by illegal means, is devoid of force. As discussed above, the recovery is not from the field but it is from the jeep on the road. Sec.68 of -6- the Act says that property acquired by illegal means can be acquired but here, in the present case, the trial Court has already acquitted all the accused for the charges u/ss.27A & 29 of the Act by answering questions No.4, 5 and 6 in negative at page 45 of the judgment. 6. Learned counsel for the appellants has further argued that all the three accused appellants have undergone the sentence of more than 10 years but they are in jail because of non-deposit of fine of Rs.one lac in each of the offences for which they have been convicted and they are undergoing the sentence in default of payment of fine for having no money to deposit, which may be reduced. In support of his contention, he has placed reliance upon a judgment of this Court in Manilal vs. Union of India “S.B.Cr.Appeal No.545/1996” decided on 21st October, 2003, wherein the sentence of 15 years was reduced to ten years for the offence u/s.8/21 of the Act and a fine of Rs.one lac was kept intact. However, the sentence in default of payment of fine was reduced to two months' R.I. instead of two years. I have gone through this judgment. Here, in the cited case, the heroin recovered was 11.380 kgs. and in the present case, it was 7.235 kgs. Keeping in view all the facts and circumstances of the case and also the fact that they have not been previously -7- convicted and are unable to pay fine, ends of justice will be met if the sentence in default of payment of fine is reduced to two months, instead of one year for both the offences. 7. Consequently, the appeal filed by the Narcotics Control Bureau against the acquittal of Rane Khan is dismissed. The appeal filed by accused appellants Ishwar Singh, Senda Ram and Jerupa is partly allowed and while maintaining their conviction and sentence passed by Special Judge, NDPS Cases, Jodhpur vide his judgment dated 24.4.02, the sentence of one year's R.I. for each of the offences u/ss.8/21 and 25 of the Act awarded to accused appellant Ishwar Singh in default of payment of fine of Rs.one lac is reduced to two months for each of the offences. Likewise, the sentence of one year's R.I. for the offence u/s.8/21 of the Act awarded to accused appellant Senda Ram and Jerupa in default of payment of fine of Rs.one lac is also reduced to two months. (DEO NARAYAN THANVI), J. RANKAWAT JK, PS