[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. CRIMINAL APPEAL NO. 278/2003 GHANSYAM & ANR. Vs. UNION OF INDIA S.B. CRIMINAL APPEAL UNDER SECTION 374 CR.P.C. AGAINST THE JUDGMENT AND ORDER DATED 18.01.2003 PASSED BY THE SPECIAL JUDGE, NDPS CASES, JHALAWAR IN SESSIONS CASE NO. 24/2001. Date: 23/07/2008. HON'BLE MR. JUSTICE K.S. RATHORE Mr. Ali Mohd. Khan for the accused-appellants. Mr. Laxman Madnani, Special P.P. for UOI. *** The present criminal appeal is directed against the judgment dated 17.01.2003 passed by the Special Judge, NDPS Cases, Jhalawar, whereby the accused-appellants have been convicted under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act of 1985') and sentenced to undergo rigorous imprisonment for 10 years with a fine of Rs. 1,00,000/- each, in default of payment of fine to further undergo simple imprisonment for three years. Briefly stated the facts of the case are that complainant Shri Niranjan Guru, C.I., Narcotics Department received a Mukhabir information on 12.01.2001 to the effect that the above accused- appellants are seating at Gilani Tiraha at Panchayat Bhawa. The complainant asked the name of the [2] appellants and as per the Department's case complainant recovered contraband articles from the possession of the accused-appellants and lodged a written report on 12.01.2001. On the basis of the above information, CNB registered a case and investigation commenced. After completion of the investigation, charge-sheet was filed and the case was committed for trial. The trial Court framed charge under Section 8/18 of the NDPS Act against the accused-appellants, who denied the charges and claimed trial. The prosecution examined as many as 6 witnesses and got exhibited some documents. The statements of the accused- appellants were recorded under Section 313 Cr.P.C. The Special Judge, NDPS Cases, Jhalawar after hearing rival submissions of the respective parties, vide impugned judgment dated 17.01.2003 convicted and sentenced the accused-appellants as mentioned herein above. Being aggrieved and dissatisfied with the impugned judgment dated 17.01.2003, the present criminal appeal has been preferred on behalf of the accused-appellants. Learned counsel for the accused-appellants without challenging the impugned judgment on merit, submits that as per the prosecution case, 10 Kg.-900 gms. of opium was recovered from the possession of the accused-appellant Ghanshyam, whereas from the possession of the accused-appellant Kalu, 9 Kg.-900 [3] gms. of opium was recovered and as per the report received from the Government Opium & Alkaloid Works, Neemuch (M.P.), percentage of morphine in the quantity recovered from the possession of accused- appellants Ghanshyam and Kalu was observed as 12.77% and 13.18% respectively and calculating the total weight of the opium as per the Analyst's Report, comes to 1.391 Kg. so far as accused-appellant Ghashyam is concerned and 1.300 Kg. so far as accused-appellant Kalu is concerned. Learned counsel for the accused-appellants further submits that as per Schedule appended with notification, specifying small quantity and commercial quantity at Item No. 92, 25 grams of opium is termed as small quantity and 2.5 Kg. as commercial quantity. Learned counsel appearing for the accused- appellants, in support of his submissions, placed reliance on the judgment rendered by Hon'ble the Supreme Court in the case of E. Micheal Raj. Vs Intelligence Officer, Narcotic Control Bureau, reported in JT 2008 (4) SC 523, wherein the Hon'ble Supreme Court has held that “In the present case, the narcotic drug was found in possession of the appellant as per the Analyst's report is 60 gms. which is more than 5 gms., i.e. small quantity, but less than 250 gms., i.e. commercial quantity. The quantity of 60 gms. is lesser than the commercial quantity, but greater than the small quantity and, [4] thus, the appellant would be punishable under Section 21(b) of the NDPS Act. Further, it is evident that the appellant is merely a carrier and is not a kingpin.” I have heard learned counsel for the accused-appellants, learned Special Public Prosecutor appearing for the respondent Union of India and carefully gone through the impugned judgment dated 17.01.2003. I have also considered the ratio decided by Hon'ble Supreme Court in the case of E. Micheal Raj (supra). Admittedly here in the instant case, as per the Analyst's report, the quantity of opium recovered from the possession of the accused- appellants is more than 25 gms. i.e. small quantity but lesser than 2.5 Kg. i.e. the commercial quantity and thus, the appellants would be punishable under Section 21(b) of the NDPS Act. In the considered view of this Court and applying the ratio decided by Hon'ble Supreme Court in the case of E. Micheal Raj (supra) and looking to the facts and circumstances of the case, the conviction of the accused-appellants under Section 8/18 of the NDPS Act is upheld, but as the accused- appellants have already undergone the sentence of about 7 years and 6 months in custody, the ends of justice would be subserved if the sentence awarded to the accused-appellants is reduced to the period already undergone by them in custody and fine of Rs. [5] 1,00,000/- is reduced to Rs. 50,000/-, in default of payment of fine of Rs. 50,000/-, to undergo simple imprisonment for two years. Consequently, the impugned judgment dated 17.01.2003 passed by the Special Judge, NDPS Cases, Jhalawar so far as convicting the accused-appellants under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is concerned, the same is upheld but instead of sentence of rigorous imprisonment for 10 years under Section 8/18 of the Act of 1985, the accused appellants are sentenced to the period already undergone by them in confinement and the fine is reduced from Rs. 1,00,000/- to Rs. 50,000/-, in default of payment of fine of Rs. 50,000/-, the accused-appellants shall have to undergo simple imprisonment for two years. Only after depositing the amount of fine of Rs. 50,000/-, the accused-appellants (1) Ghanshyam s/o Mohan Lal and (2) Kalu Ram S/o Kani Ram, who are lodged in Central Jail, Kota, shall be set at liberty forthwith, if not required to be detained in any other case. Accordingly, the present criminal appeal is partly allowed and the impugned judgment dated 17.01.2003 passed by the Special Judge, NDPS Cases, Jhalawar is modified to the extent as mentioned herein above. (K.S. RATHORE), J. /KKC/ (Hearing) [6]