[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. CRIMINAL APPEAL NO. 264/2003 MANIRAM Vs. STATE OF RAJASTHAN S.B. CRIMINAL APPEAL UNDER SECTION 374 CR.P.C. AGAINST THE JUDGMENT AND ORDER DATED 07.02.2003 PASSED BY THE SPECIAL JUDGE, NDPS CASES, MALPURA, DISTRICT TONK IN CRIMINAL CASE NO. 20/2001. Date: 14/08/2008. HON'BLE MR. JUSTICE K.S. RATHORE Mr. M.L. Bishnoi with Mr. V.P. Bishnoi for the accused-appellant. Mr. B.S. Chhaba, Public Prosecutor for the State. *** The present criminal appeal is directed against the judgment dated 07.02.2003 passed by the Special Judge, NDPS Cases, Malpura, District Tonk, whereby the accused-appellant has 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/-, in default of payment of fine to further undergo rigorous imprisonment for one month. 2 Brief facts of the case are that on 30.08.2001, SHO, Malpura got a secret information [2] regarding selling of opium by a person at Roadways Bus Stand, Malpura. After completing some legal formalities, the SHO reached at the Bus Stand at 02.30 p.m., where he called two persons to be witnesses of the proceedings. It is further alleged that the present appellant Maniram came on a motorcycle. When he was accosted and enquired about, he revealed his identity and address. The appellant was searched along with the motorcycle after due notice under Section 50 of the NDPS Act. During the course of search, 1.300 kg. opium was alleged to be recovered from the motorcycle and the appellant was taken into custody. After investigation, challan under Section 8/18 of the NDPS Act was filed by the police. 3. After completion of the trial, the Special Judge having heard rival submissions of the respective parties, vide its impugned judgment dated 07.02.2003 convicted and sentenced the accused-appellant as indicated herein above. 4. Challenging the impugned judgment dated 07.02.2003 passed by the Special Judge, NDPS Cases, Malpura, the present criminal appeal has been preferred on behalf of the accused-appellant on the ground that there are material contradictions and inconsistencies in the statements of the witnesses. [3] 5. Learned counsel for the accused-appellant without arguing the appeal on merit, submits that as the accused-appellant has already undergone the sentence of about 6 years, one month and 20 days in custody, therefore, the sentence awarded to the accused-appellant of rigorous imprisonment for 10 years, be reduced to the period already undergone by him in custody. 6. It is further contended that the opium which was recovered from the possession of the accused-appellant, admittedly, as per the Schedule, is greater than the small quantity but lesser than the commercial quantity. 7. In support of his submissions, the learned counsel for the accused-appellant 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 2008 Cr.L.R. (SC) 401, wherein the Hon'ble Supreme Court has held that “In the present case, the narcotic drug which 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 [4] than the small quantity and, 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. In these circumstances, the ends of justice would be subserved if we reduce the sentence of the accused- appellant to 6 years rigorous imprisonment with fine of Rs. 20,000/- and in default of payment of fine rigorous imprisonment for six months.” 8. I have heard rival submissions of the respective parties and carefully gone through the impugned judgment passed by the Special Judge trial Court as also the relevant record. 9. I have also considered the ratio decided by the Hon'ble Supreme Court in the case of E. Micheal Raj. Vs Intelligence Officer, Narcotic Control Bureau (supra), referred by the learned counsel for the accused-appellant 10. Admittedly, in the instant case 1.300 Kg. opium was recovered from the possession of accused- appellant, which is greater than the small quantity but less than the commercial quantity. 11. Looking to the overall facts and circumstances of the case, the material available [5] on the record and considering the fact that the quantity of opium which was recovered from the accused-appellant is greater than the small quantity but less than the commercial quantity and in view of the ratio decided by the Hon'ble Supreme Court in the case of E. Micheal Raj. Vs Intelligence Officer, Narcotic Control Bureau (supra), the conviction of the accused-appellant under Section 8/18 of the NDPS Act deserves to be upheld, but as accused-appellant has already undergone the sentence of about 6 years, 1 month and 20 days in custody, the ends of justice would be subserved if the accused-appellants is sentenced to the period already undergone by him in custody with a the fine of Rs. 1,00,000/-, as awarded by the Special Judge and in default of payment of fine of Rs. 1,00,000/-, the accused-appellant will have to undergo the sentence as awarded by the Special Judge i.e. rigorous imprisonment for one month. 12. With these observations, the impugned judgment dated 07.02.2003 passed by the Special Judge, NDPS Cases, Malpura, District Tonk, so far as convicting the accused-appellant under Section 8/18 of the NDPS ACt is concerned, the same is upheld but instead of sentence of rigorous imprisonment for 10 years, the accused appellant is sentenced to the period already undergone by him in [6] confinement with a fine of Rs. 1,00,000/-, as awarded by the Special Judge and in default of payment of fine, the accused-appellant will have to undergo rigorous imprisonment for one month, as awarded by the Special Judge. 13. Only after depositing the amount of fine of Rs. 1,00,000/-, accused-appellant Maniram S/o Shri Ratiram, who is in District Jail, Tonk, shall be set at liberty forthwith, if not required to be detained in connection with any other case. 14. In the result, the present criminal appeal is partly allowed and the impugned judgment dated 07.02.2003 passed by the Special Judge, NDPS Cases, Malpura, District Tonk is modified to the extent as mentioned herein above. (K.S. RATHORE), J. /KKC/ (Hearing/Reserved)