[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. CRIMINAL APPEAL NO. 1315/2002 SANJAY KUMAR Vs. UNION OF INDIA S.B. CRIMINAL APPEAL UNDER SECTION 374 CR.P.C. AGAINST THE JUDGMENT AND ORDER DATED 27.09.2002 PASSED BY THE SPECIAL JUDGE, NDPS CASES, JHALAWAR IN SESSIONS CASE NO. 45/2001. Date: 10/07/2008 HON'BLE MR. JUSTICE K.S. RATHORE Mr. Sanjay Mehrishi for the accused-appellant. Mr. Laxman Madnani with Ms. Rekha Madnani, Spl. Public Prosecutor for UOI. *** The present criminal appeal is directed against the judgment dated 27.09.2002 passed by the Special Judge, NDPS Cases, Jhalawar, whereby the accused-appellant has been convicted under Section 8/21(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act of 1985') and sentenced to undergo rigorous imprisonment for 6 months with a fine of Rs. 5,000/-, in default of payment of fine to further undergo simple imprisonment for 15 days. Learned counsel Mr. Sanjay Mehrishi, appearing on behalf of the accused-appellant submits that no recovery was effected from the accused-appellant. He further submits that the accused-appellant was on bail during trial and he [2] already remained in custody for about three months whereas the sentence awarded to the accused- appellant is rigorous imprisonment for six months. It is also contended that presently the accused- appellant is on bail as the sentence awarded to him by the Special Judge was suspended by this Court vide order dated 03.10.2002. Learned counsel for the accused-appellant does not want to argue the appeal on merit and 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 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.” [3] Placing reliance on the judgment rendered in the case of E. Micheal Raj. Vs Intelligence Officer, Narcotic Control Bureau (supra), learned counsel for the accused-appellant submits that as the accused-appellant has already undergone the sentence of about 3 months in custody, the ends of justice would be subserved if the sentence of rigorous imprisonment for six months awarded to him by the Special Judge, is reduced to the period already undergone by him in custody. I have heard rival submissions of the respective parties and carefully gone through the impugned judgment passed by the trial Court as also the relevant record. I have also considered the judgment rendered 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. Having considered the overall facts and circumstances of the case, this Court is of the view that the ratio decided by the Hon'ble Supreme Court in the case of E. Micheal Raj. Vs Intelligence Officer, Narcotic Control Bureau (supra) is applicable to the instant case and applying the aforesaid ratio and upon careful perusal of the entire material available on the record, the conviction of the accused-appellant under Section 8/21(A) of the NDPS Act is upheld, [4] but as accused-appellant has already undergone the sentence of about 3 months in custody out of the total sentence awarded for the period of six months, the ends of justice would be subserved if the accused-appellant is sentenced to the period already undergone by him in custody. With these observations, the impugned judgment dated 27.09.2002 passed by the Special Judge, NDPS Cases, Jhalawar so far as convicting the accused-appellant under Section 8/21(A) of NDPS Act is concerned, the same is upheld but instead of sentence of rigorous imprisonment for 6 months as awarded by the Special Judge, the accused appellant is sentenced to the period already undergone by him in confinement. The accused-appellant Sanjay Kumar is on bail, he need not surrender and his bail bonds stand discharged. Accordingly, the present criminal appeal is partly allowed and the impugned judgment dated 27.09.2002 passed by the Special Judge, NDPS Cases, Jhalawar is modified to the extent as mentioned herein above. (K.S. RATHORE), J. /KKC/ (Hearing)