// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT IN S.B. Criminal Appeal No.602/2007 Kalu @ Sarfuddin S/o Kamruddin Versus The State of Rajasthan through P.P. Date of Judgment :::: 23rd April, 2007 PRESENT Hon'ble Mr. Justice Narendra Kumar Jain Shri Naseem Uddin Qazi, Counsel for accused-appellant Shri Arun Sharma, P.P., for the State #### By the Court:- With the consent of both the parties, the appeal is being disposed of finally at admission stage itself. Heard learned counsel for both the parties. Learned counsel for the appellant did not challenge the order of conviction of the accused- appellant passed by the Special Judge, NDPS Act Cases (Additional Sessions Judge No.2), Kota, vide its judgment and order dated 5.2.2007 in Special Sessions Case No.30/2005, but his only submission is for reduction of sentence of the accused-appellant looking to the quantity of contraband recovered in the present matter. He contended that, as per the prosecution case, the smack weighing 7 gram and 400 milligram was recovered from the possession of the accused-appellant // 2 // and the trial court has passed the sentence of 3 years rigorous imprisonment. He contended that NDPS Act was amended with effect from 2nd October, 2001, and in exercise of powers conferred by Clauses (viia) and (xxiiia) of Section 2 of the NDPS Act, 1985, the small and commercial quantity has been specified vide Notification dated S.O./1055(E) dated 19.10.2001, and a Table is appended with the Act, 1985. As per the aforesaid Notification, the small quantity of the smack has been specified as 5 gram and maximum sentence of imprisonment provided for small quantity is six months. The quantity in the present case is only 7 gram and 400 milligram, which is slightly above the small quantity and ends of justice would have met in case the sentence of imprisonment of 9 months would have been awarded by the trial court, therefore, his submission is that the sentence of imprisonment awarded by the trial court is excessive looking to the facts and circumstance of the present case as well as the quantity of contraband recovered in the present matter and the same may be reduced to a period of 9 months. The learned Public Prosecutor contended that although the trial court has not referred Exhibit P-13 but therefrom it appears that some other cases were also registered against the appellant, therefore, the appellant appears to be habitual in nature and the trial court was right in awarding the sentence of imprisonment. I have considered the submissions of the learned counsel for the parties and minutely scanned // 3 // the impugned judgment passed by the trial court. As per the prosecution case, a secret information was received on 24.7.2004 by Shiv Singh Meena and on that basis the accused was caught hold and a notice (Exhibit P-6) under Section 50 of the NDPS Act was given to him and on his personal search the net smack weighing 7 gram and 400 milligram was recovered from his possession by PW-2 Shiv Singh Meena, the Recovery Officer, in the presence of prosecution witness Mohammad Saeed (PW-3) and another witness Shabbir, vide recovery-memo Exhibit P-1. Exhibit P-1 has been proved by PW-2 Shiv Singh Meena and PW-3 Mohammad Saeed. The statement of Shiv Singh Meena is further corroborated with the statements of PW-5 Sanjay Kumar and PW-6 Rajendra Singh, who were also members of the raiding-party. The compliance of Section 50 of the NDPS Act was made in the present case. The trial court has examined the prosecution case in detail and recorded a finding that the accused has committed an offence and I am satisfied that the finding of the trial court is justified in the eye of law and the learned counsel for the appellant is right in not pressing the appeal on merits. So far as the question of reduction of sentence of imprisonment is concerned, I find that the incident relates to 24.7.2004. Vide Notification dated 19.10.2001 a Table was appended to NDPS Act specifying the small and commercial quantity of the contraband. The small quantity of Heroin/smack is 5 gram and as per the clause (a) of Section 21 of the NDPS Act, the maximum sentence provided for small quantity is six // 4 // months RI or with fine which may extend to Rs.10,000/- or with both. The commercial quantity of smack is 250 gram for which the minimum sentence of 10 years is provided. The submission of the learned counsel for the appellant is that looking to the quantity of contraband i.e. 7 gram and 400 milligram recovered in the present case, the sentence of imprisonment awarded by the trial court is excessive. I have considered Exhibit P-13 and I find that two cases were registered against the appellant in the year 1997 and 1998; one under Sections 324 and another under Section 307/34 IPC but result of the same has not been given by the prosecution, therefore, it is not known whether he has been acquitted or convicted in those cases; so far as another case No.149/01 under Section 8/27 of the NDPS Act is concerned, it relates to 3.12.2001, but its result has also not been given in Exhibit P-13. However, after considering all the facts and circumstances of the case, I am not inclined to reduce the sentence of imprisonment of the accused-appellant to 9 months as contended by the learned counsel for the appellant, but, looking to the facts and circumstances of the present case including the quantity of contraband recovered in the present case and also Exhibit P-13, I think it fit and proper that ends of justice will meet in case the sentence of imprisonment awarded by the trial court against the appellant is reduced to a period of 1 year and 3 months with fine, which is increased from Rs.2000/- to Rs.4000/-. Consequently, the appeal is partly allowed. The // 5 // conviction of the accused-appellant under Section 8/21 of the NDPS Act is maintained, but his sentence is reduced to a period of 1 year and 3 months RI with fine of Rs.4000/- (Rupees four thousand); in default of payment of fine to further undergo 1 month's additional simple imprisonment. (Narendra Kumar Jain) J. //Jaiman//