1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. ORDER Shafik mohd. @ Shafi Baba Vs. State of Rajasthan SB CRIMINAL APPEAL NO.1566/2007. Under Section 374(2) of the Code of Criminal Procedure. DATE OF ORDER: 24th September, 2008. PRESENT HON'BLE MR. JUSTICE S.P. PATHAK Mr. Rohan Jain for the appellant. Mr. B.S. Chabba PP for the State. BY THE COURT: This appeal has been filed against the judgment dated 19th July, 2007 passed by the learned Special Judge, NDPS Cases, Baran in Sessions Case No.149/2004 whereby the accused-appellant has been convicted for the offence under section 8/20 of the Narcotic Drugs and Psychotropic Substances Act (in short, 'the NDPS Act') and sentenced to six years rigorous imprisonment and a fine of Rs.25,000/-, in default of payment of fine to undergo further six months rigorous imprisonment. Necessary facts for the disposal of the present appeal are that the accused was apprehended under suspicious circumstances by the police petrolling party of Police Station Baran on 21.11.2004 near railway track, Baran. On asking about his identity, he disclosed his name as Shafi Mohammad. At that time accused was carrying a bag on his shoulder. It was thought 2 proper to take search of the person of the accused and the bag. One of the police constable Phool Chand was directed to arrange for independent witnesses but nobody prepared to become independent witness, as such two persons namely Bhupendra Singh and Karan Singh were made independent witnesses. On search of the bag, in two plastic bags contraband material was found. On testing by the police party, it was found to be 'ganja'. The total weight of the contraband material recovered was found 4 kg 450 gm. Out of the recovered contraband material, two samples of 50 gms. each were drawn and marked as 'A1' and 'A2' and remaining contraband material was also kept in a small white cloth bag and marked as 'A'. Before taking search of the bag, Dilip Singh PW-9 gave a search to the deputed independent witnesses from the police party and also took search of them. After completing necessary investigation at the spot, the police party on returning to the police station lodged FIR No.715/2004. The samples and the recovered material were deposited in the malkhana. The accused was arrested. The investigation was handed over to Bhanwar Singh. After completion of investigation, charge-sheet was filed by PW-10 Rajendra Singh before the court of Special Judge, NDPS Cases. The learned trial court framed charge under section 8/20 of the NDPS Act to which the accused denied and claimed trial. In all 11 witnesses were produced by the prosecution in support of its case. In the statement recorded under section 313 Cr.P.C., the accused denied the case of the 3 prosecution and stated that at a little distance from the place where he was sitting on the day of incident, a bag was lying on the earth that was taken by the police, he was also caught hold by the police, taken to the police station and a false case was registered against him. No evidence in defence was produced. Learned trial court after hearing both the sides convicted and sentenced the accused as aforesaid. Hence, this appeal has been filed. The learned counsel for the appellant has not challenge the conviction recorded by the learned trial court. He submits that the sentence which has been recorded against the accused appellant is too excessive. It is also contended that the accused is only bread earner of his family. It is contended that he is in jail for about 18 months, therefore, lenient view be taken in the matter. It is also contended that the accused is not a previous convict and is having no criminal antecedents. The family of the accused is being ruined because of this case. On the other hand, learned Public Prosecutor submits that the learned trial court has correctly sentenced the accused appellant, therefore, the appeal is liable to be dismissed. I have considered the submissions made before me and carefully perused the material available on record. The learned trial court has recorded its finding that on 21.11.2004, the accused was apprehended by the police and on search of the plastic bag which he was carrying on his shoulder, contraband material was recovered and on chemical examination 4 as per the report of the FSL it was found 'ganja'. The learned trial court further found that the evidence led in this case was trust- worthy in the absence of independent witnesses as they could not be arranged in spite of efforts made in this regard. In relation to other arguments advanced regarding seal used at spot was not deposited in the malkhana by Dilip Singh ASI, the learned trial court recorded its finding that the incident is dated 21.11.2004 and on the very same day in the malkhana of the police station the samples and the recovered contraband material were deposited and a entry in the rojnamcha was also made on 21.11.2004. On 25.11.2004 the samples were sent through PW-8 Abdul Sattar to the FSL and he after depositing the samples submitted the receipt in proof of its depositing in FSL in the police station on 27.11.2004. The seal on the samples was found intact as per the FSL report, therefore, the irregularities in relation to seal which was used at the spot but was not deposited in the malkhana was not fatal to prosecution. The findings above, in my opinion, appears to be based on proper appreciation of evidence is reasonable, just and proper and requires no interference. It appears that PW-6 Karan Singh and PW-7 Suresh Chand have supported the prosecution case in their statements and from their cross examination nothing could be extracted to disbelieve their testimony. In other evidence, PW-8 is Abdul Sattar who took the sample from malkhana and thereafter the same was deposited in the FSL and he submitted a 5 receipt in the police station after depositing the sample of contraband material in FSL in sealed condition, therefore, there does not appear any doubt that the contraband material which was recovered and sealed at the spot either was changed or sent to the FSL. The learned counsel for the appellant, in my opinion, has not rightly challenged the conviction. The other aspect which requires consideration is as to whether the sentence awarded to the accused-appellant requires to be reduced? As per the submissions of the learned counsel, the accused is only the bread earner in the family, there is no past conviction recorded against him, there is no record that in past he was involved in such activities and the accused appellant is in jail for last two years and the sentence awarded to him is extendable up to 10 years, therefore, in the facts and circumstances of the case, in my opinion, the ends of justice would meet in case the sentence awarded to the accused is reduced from 6 years rigorous imprisonment to 4 years rigorous imprisonment and fine of Rs.25,000/-, in default of payment of fine to further undergo six months rigorous imprisonment and to this extent the appeal is required to be allowed. In the result, the appeal is partly allowed. The conviction recorded against the accused appellant vide judgment dated 19.7.2007 is hereby maintained. The sentence awarded to him is reduced from 6 years rigorous imprisonment to 4 years 6 rigorous imprisonment and a fine of Rs.25,000/-, in default of payment of fine to further undergo six months rigorous imprisonment. The order of sentence is modified to the above extent. (S.P. PATHAK),J.