CRIMINAL APPEAL No.976 OF 2006 WITH CRIMINAL APPEAL NO. 1032 OF 2006 ******* (In the matter of appeals under Section 374 (2) and 389 (1) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 07th November, 2006 passed by Dr. R. K. Tewary, 1st Additional Sessions Judge, Kaimur at Bhabhua in Trial No. 12 of 1997 arising out of Ramgarh Police Station Case No. 60 of 1992) ******** NAGENDRA SINGH, SON OF SRI UGRAH SINGH, RESIDENT OF VILLAGE MOHANIA, POLICE STATION MOHANIA, DISTRICT KAIMUR ............................................................APPELLANT (in Cr. App. 976/2006) WITH SHREE RAM RAM @ SHREE RAM CHAMAR, SON OF SRI RAM KAWAL CHAMAR, RESIDENT OF VILLAGE AKORHI, POLICE STATION RAMGARH, DISTRICT KAIMUR (BHABHUA) ………………………………………………. APPELLANT (in Cr. App. 1032/2006) VERSUS THE STATE OF BIHAR………………….RESPONDENT (in both appeals) ********** FOR THE APPELLANT :- MR. GIRISH CHANDRA SHARMA, ADV. (IN CR.APP.976/2006) FOR THE APPELLANT :- MR. YOGENDRA KUMAR, ADVOCATE (IN CR.APP. 1032/2006) MR. RAM NARESH ROY, ADVOCATE DR. M. K. GAUTAM, ADVOCATE FOR THE S T A T E :- MR. R. N. JHA, A.P.P. (IN BOTH APPEALS) ********* P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. These two appeals arise out of the same judgment dated 07.11.2006 and are being disposed of by this common order. 2 Both the appellants have been convicted under Sections 17 and 21 Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”) to undergo rigorous imprisonment for five years each under the aforesaid sections and also to pay a fine of Rs. 25,000/-. The recovery from the appellant Nagendra Singh was 15 gms. of Heroin whereas the recovery from the appellant Shree Ram Ram @ Shree Ram Chamar is of 10 gms. of Heroin. The appellant Nagendra Singh has remained in custody for about three years and six months whereas the appellant Shree Ram Ram has remained in custody for more than three years. As per the S.O 1055(E), dated 19.10.2001 a chart has been prepared under the Act for the purpose of showing the small quantity and commercial quantity of Narcotic drugs or psychotropic substance as the punishment for possessing small quantity and commercial quantity varies greatly. Heroin, the Narcotic drug which was recovered from the appellants is at item no. 56 of the said chart. The small quantity of Heroin is the amount of 5 gms. whereas the commercial quantity is 250 gms. Admittedly, the appellants were in possession of a quantity much lesser than the commercial quantity and a little above the smaller quantity as defined under the Act. 3 The main thrust of the argument is that the weight of the seized drugs were not taken by the Officer who had seized the drugs from the possession of the appellants and as such they were prejudiced as the heroin was not weighed by the informant of this case. Without going into the various submissions made on behalf of the appellants, I would consider the period of incarceration as an important factor for disposing of these appeals. The quantity is admittedly just a little above from the small quantity and the incarceration period is three years six months and three years respectively. As such I think that they have been sufficiently punished in the facts of this case and as such I alter the sentence by holding that the appellants Nagendra Singh and Shree Ram Ram @ Shree Ram Chamar are liable to undergo rigorous imprisonment for three years. The rest of the period in incarceration should be set off against the fine which was imposed on the appellants by the Trial Court. In the result, these two appeals are dismissed with the aforesaid modification. (Sheema Ali Khan, J. ) Patna High Court April 27, 2009 N.A.F.R/Anand