1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ** S.B.CRIMINAL APPEAL NO.1428/2007 (Gabdu Lal and ors. Vs. State) ** Date of Judgment : 13-10-2009 ** HON'BLE MR.JUSTICE GUMAN SINGH Mr.K.A.Khan, for the appellants. Mr.S.K.Mehla, Public Prosecutor for State. Heard learned counsel for the parties. 2. This appeal has been preferred by the accused-appellants against the judgment delivered by learned Special Judge, NDPS Cases, Chhabra, Distt.Baran dated 28.6.2007 whereby accused-appellants Jailal and Dhanraj were convicted under Sec.8/21 and in the alternative under Sec.8/17 of the NDPS Act and sentenced to 10 years' rigorous imprisonment and fine of Rs.1,00,000/- in default of payment of fine to further undergo one year rigorous imprisonment while accused-appellant Gabdulal was convicted under Sec.8/29 of the NDPS Act and sentenced to 10 years' rigorous imprisonment and fine of Rs.1,00,000/- in default of payment of fine to further undergo one year rigorous imprisonment. 2 3. Briefly stated, the prosecution case is that on 12.2.2004, Jodha Ram, SHO, P.S. Kawai along with police party was on petrolling duty and when he was checking the vehicles at Atru Road, Nimoda Phatak, at about 10.30 AM, two persons were coming on motor cycle. They were stopped and on being enquiry, they told their names as Dhanraj and Jailal. They were asked as to why they tried to run away, they could not reply satisfactorily. On suspicion of there being some contraband article with them, independent witnesses were called but no such witness could be produced and hence Arun Singh and Jakir Hussain, who were member of police party, were nominated as motbirs. The appellants were informed about their right to be searched before a Magistrate or a Gazetted Officer and hence they were given such an option. But the appellants expressed their willingness to be searched before the SHO himself. On being searched, Dhanraj was found with small packet under his pent near waist having powder which was found to be smack. Thereafter, accused Jailal was searched. He was found with small pocket in right pocket 3 of his pent which was also found to have contained smack. The contraband recovered was weighed which was found to be 300.00 gms in each packet recovered from each accused. Samples out of the seized contraband were taken on the spot and accused persons were arrested. On being inquired, two accused informed that they had bought this contraband from Gabdulal and that the motor cycle also belonged to him. Hence motor cycle was also seized. After preparing necessary memo, case was registered at the police station and the investigation proceeded. 4. After due investigation, charge-sheet was filed in the court against accused- appellants Dhanraj and Jailal under Sec.8/21 of NDPS Act while against accused Gabdulal under Sec.8/29 of NDPS Act. The accused- appellants were then charge-sheeted by the court who pleaded not guilty and claimed trial. The prosecution examined as many as 08 witnesses and produced 17 documents in support of its case. Thereafter, statements of accused-appellants under Sec.313 Cr.P.C. were recorded. The accused-appellants denied 4 any recovery from them and stated that they were falsely implicated. No defence witness was produced. After hearing final arguments in the case, accused-appellants were convicted and sentenced in the manner indicated herein above. 5. Heard learned counsel for the appellants as also learned Public Prosecutor for the State and perused the record of the case. 6. Learned counsel for the appellants submitted that as far as case of accused- appellant Gabdulal is concerned, the prosecution has failed to prove the case of abatement or conspiracy against him on the basis of convincing, credible and legal evidence on record. It is submitted that statement alleged to have been made by two accused Dhanraj and Jailal are hit by section 25 and 26 of the Evidence Act as the confession made to the police is inadmissible in evidence. It is also submitted that evidence of recovery of motor cycle belonged to Gabdulal, also does not tend to connect the accused with the alleged crime in view of the fact that contraband 5 was in small quantity and that was carried on person and as such no vehicle was required for carrying the same. It is further submitted that no contraband has been recovered from accused Gabdulal to further strengthen his involvement. 7. As regards rest two accused-appellants Jailal and Dhanraj, the learned counsel submitted that he does not want to press the appeal on metits. He mainly confined his arguments on the quantum of sentence and submitted that accused-appellants Jailal and Dhanraj since have already undergone almost 3 years 10 months and 4 years 5 months sentence respectively, therefore, they may be released for the sentence already undergone. Learned counsel has placed reliance on the judgment of Hon'ble Apex Court in E.Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau reported in J.T. 2008 III AD(Cr.)53, on the point that for the purposes of determining the actual quantity of the contraband, the neutral substance involved in the contraband is required to be deducted and real quantity of the contraband is to be determined for the 6 purposes of Section 18 of the N.D.P.S. Act which provides a separate range of punishment for the small quantity, commercial quantity and intermediate quantity i.e. less than the commercial quantity. It is further submitted that as per FSL report, the contraband substance recovered from the possession of accused appellants Jailal and Dhanraj was found to be containing 7.22% morphine and, therefore, total quantity of morphine recovered from appellant comes out to about 22.0 gms. The relevant entry under notification dated 19.10.01 under Sec.2 of the NDPS Act is at S.No.93 which provides that small quantity of morphine is 5 gms while commercial quantity is mentioned to be 250 gm. It is further submitted that in view of above judicial pronouncement, sentence deserves to be scaled down and accused- appellants Jailal and Dhanraj deserve to be released for the sentence already undergone. 8. Learned Public Prosecutor agrees to the aforesaid legal proposition but opposed the reduction of sentence. 7 9. In view of submissions advanced by learned counsel for the appellants pertaining to accused Gabdulal, it is revealed that he has been mainly guilty of the offence under Sec.8/29 NDPS Act which pertains to abatement and criminal conspiracy. The learned trial court has dealt this aspect and has observed that though two accused Jailal and Dhanraj had stated to the police that they had purchased the opium from Gabdulal but this part of their statement could not be formed basis of conviction as the two accused-persons were already in police custody. However, the learned trial court has placed reliance on this part of evidence on the basis that as per statement of PW-7 Jodha Ram, SHO and PW- 1 Ramsewak, who were member of police party were told about the fact of purchasing the contraband from Gabdulal even before their actual arrest on initial enquiry. The trial court has further linked accused Gabdulal on the basis of recovery of motor cycle belonged to him was found in the possession of the two appellants who were allegedly brought opium from Gabdulal and the same was 8 being carried on the motor cyele. But the evidence considered by trial court to base the conviction of abatement and conspiracy appears to be insufficient to conclude that the conspirary or abatement had infact taken place as even after arrest of accused Gabdulal, no opium was recovered from his residence so that if could be inferred that he was selling or dealing in opium and the contraband recovered from the appellants could be part of such a deal. That apart, the recovery of motor cycle in the matter also does not connect the accused-Gabdulal as the contraband was so small in quantity and was carried in the pocket or on person and the motor cycle used cannot be said to be a vehicle required to be used for carrying the contraband. Had there been any gunny bag full of any contraband, a vehicle could be required for carrying the same, and then it could be inferred that vehicle was being used for carrying contraband. The confession of the accused appellant Jailal and Dhanraj to the police before and after their arrest, after suspicion of possessing a contraband, does not form part of legal evidence as the same are hit by the 9 provisions of Sections 25 and 26 of the Indian Evidence Act. Thus the evidence adduced by the prosecution has failed to bring home the guilt of accused Gabdulal for criminal conspiracy or abatement through convincing, cogent, reliable and legal evidence and hence accused Gabdulal deserves to be acquitted by giving him benefit of doubt. 10. On going through the evidence adduced by the prosecution, it is revealed that the prosecution has led evidence on the point of recovery of contraband article and seizure & sealing thereof, and also on the point of keeping the seals intact until it reached to the chemical examination, through credible and reliable evidence and, as such, in view of the argument of learned counsel for the appellants on the point of quantum of sentence only, the prosecution case on merits is not required to be gone into in detail. As regards the argument of the learned counsel with regard to the quantum of sentence to be awarded in view of the pronouncement of Hon'ble Apex Court, the intention of legislature for introduction of 10 amendment under Sec.18 of the NDPS Act appears to punish the people of less serious offence with less severe punishment as observed by the Hon'ble Apex Court as under: “In the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance/s, the quantity of the neutral substance.s is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity. The intention of the legislature for introduction of the amendment as it appears to us is to punish the people who commit less serious offences with less severe punishment and those who commit grave crimes, such as trafficking in significant quantities, with more severe punishment.” 11. In view of above legal position, the narcotic drug recovered in the case is required to be determined as per the percentage of contraband article found by the FSL. Thus, as submitted by the learned counsel, the quantity of opium recovered is from appellants Jailal and Dhanraj and on chemical examination by FSL, it is found 11 containing 7.22% morphine and, as such, total amount of morphine comes to 22.0 gms and, therefore, the appellants i.e. Jailal who has already undergone almost 3 years, 10 months and Dhanraj who has undergone almost 4 years and 5 months sentence, their sentence deserves to be reduced to the substantive sentence already undergone and the amount of fine of Rs.1,00,000/- also deserves to be scaled down. 12. For these reasons, the impugned judgment passed by learned Special Judge, N.D.P.S. Cases, Chhabara, Distt. Baran dated 28.6.2007 in sessions case no.74/2004 is modified and conviction of accused-appellant Gabdulal under Sec.8/29 of the NDPS Act, is set aside and he is acquitted of the charges leveled against. He be released from jail henceforth. So far as conviction of accused Dhanraj and Jailal under Sec.8/21 or 8/17 of NDPS Act is concerned, it is ordered that they be released on the substantive sentence already undergone by them and the sentence of fine of Rs.1,00,000/- is reduced to Rs.10,000/-, in default of payment of fine to further undergo rigorous imprisonment of three months. 12 13. Revised jail warrants be prepared. 14. Accordingly, the appeal stands disposed of. (GUMAN SINGH),J. Srawat/- item no.s/1 13 S.B.CRIMINAL APPEAL NO.1428/2007 (Gabdulal and ors. Vs. State) Date of Judgment : 13-10-2009 HON'BLE MR.JUSTICE GUMAN SINGH Mr.K.A.Khan, for the appellants. Mr.S.K.Mehla, Public Prosecutor for State. For these reasons, the impugned judgment passed by learned Special Judge, N.D.P.S. Cases, Chhabara, Distt. Baran dated 28.6.2007 in sessions case no.74/2004 is modified and conviction of accused-appellant Gabdulal under Sec.8/29 of the NDPS Act, is set aside and he is acquitted of the charges leveled against. He be released from jail henceforth. So far as conviction of accused Dhanraj and Jailal under Sec.8/21 or 8/17 of NDPS Act is concerned, it is ordered that they be released on the substantive sentence already undergone by them and the sentence of fine of Rs.1,00,000/- is reduced to Rs.10,000/-, in default of payment of fine to further undergo rigorous imprisonment of three months. Revised jail warrants be prepared. Accordingly, the appeal stands disposed of. (See separate judgment) (GUMAN SINGH),J. Srawat/- item no.s/1