1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ** S.B.CRIMINAL APPEAL NO.1320/2007 (Jagannath Vs. State) ** Date of Judgment : 08-10-2008 ** HON'BLE MR.JUSTICE GUMAN SINGH Mr.R.R.Baisla, for the appellant. Mr.Paresh Choudhary, Public Prosecutor for State. Heard learned counsel for the parties. 2. This appeal has been preferred by the accused-appellant Jagannath S/o Jamna Lal against the judgment delivered by learned Special Judge, NDPS Cases, Chhabra, Distt.Baran dated 17.5.2007 whereby he was convicted under Sec.8/18 of the NDPS Act and sentenced to 08 years' rigorous imprisonment and fine of Rs.80,000/- in default of payment of fine to further undergo eight months rigorous imprisonment. 3. Briefly stated, the prosecution case is that on 21.6.05, SHO of Police Station- Chhepa Barod was on petrolling along with police party reached at Kawai road, near 2 petrol pump at about 12.45 PM in the day, then the police party saw a person standing near bridge, was having a plastic bag in his hand and on seeing the police, he run away in the field but police party caught him and asked for his name and address. His reply was not satisfactory and hence on suspicion of having contraband article, he was searched in the presence of two motbir witnesses i.e. Channu Pathan-Pw8 and Anil Kumar-PW10, after giving him an option to get himself searched in the presence of the Magistrate or Gazetted Officer, and accused-appellant expressed that he would like to be searched in presence of SHO Jodha Ram. He then was searched and from his bag, blackish material was found and on smelling and testing, it was found to be opium. The seized article was weighed and it was found to be 2.5 kg. Two samples were taken from the seized article for examination. Accused- appellant was arrested and along with seized article, he was taken to P.S. Chipa Badod where case under Sec.8/18 NDPS Act was registered and investigation proceeded. During the seizure proceedings, recovery memo Ex.P7 was prepared. Two motbir 3 witnesses were called and were appointed as motbirs of the search vide Ex.P-9. Memo Ex.P-10 pertaining to option given to the accused was also prepared. Accused was arrested vide arrest memo Ex.P-11. Vide Ex.P-12, sample seal was prepared and on reaching to the Police Station, FIR Ex.P-14 was lodged. The samples collected at the time of seizure were kept in Malkhana vide Ex.P-5 and site map was prepared vide Ex.P- 4. Sample was sent to FSL through constable Vijendra Singh-PW-2 who deposited the same vide receipt Ex.P2 and after examination, report of FSL Ex.P-3 was received and sample was found to be containing 2.45% of morphin . 4. After investigation, case was challaned to the court and accused-appellant was charge-sheeted under Sec.8/18 of the NDPS Act. The prosecution examined as many as 11 witnesses and produced 15 documents in support of its case. Thereafter, statement of accused-appellant under Sec.313 Cr.P.C. was recorded. In the statement, he has stated that he was falsely implicated. No defence witness was produced. After hearing final arguments in the case, accused- 4 appellant was convicted and sentenced in the manner indicated herein above. 5. Heard learned counsel for the appellant as also learned Public Prosecutor for the State and perused the record of the case. 6. Learned counsel for the appellant submitted that he does not want to press the appeal on merits. He mainly confined his arguments on the quantum of sentence and submitted that accused-appellant has already undergone almost 4 years,03 months and 20 days sentence, therefore, he 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 purposes of Section 18 of the N.D.P.S. Act which provides a separate range of punishment for the small quantity, 5 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 appellant was found to be containing 2.47% morphine and, therefore, total quantity of morphine recovered from appellant comes out to about 59.28 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- appellant deserve to be released for the sentence already undergone. 7. Learned Public Prosecutor agrees to the aforesaid legal proposition but opposed the reduction of sentence. 8. 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 & 6 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 appellant 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 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 7 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.” 9. 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 smack recovered is from appellant Jagannath and on chemical examination by FSL, it is found containing 2.47% morphine and, as such, total amount of morphine comes to 59.28 gms and, therefore, the appellant who has already undergone almost 4 years, 3 months and 20 days sentence, his sentence deserves to be reduced to the substantive sentence already undergone and the amount of fine of Rs.80,000/- also deserves to be scaled down. 10. For these reasons, the impugned judgment passed by learned Special Judge, N.D.P.S. Cases, Chhabara, Distt. Baran dated 17.5.07 in sessions case no.142/2005 is modified and 8 conviction of accused-appellant Jagannath under Sec.8/18 of the NDPS Act, is maintained and the accused-appellant is directed to be released on the substantive sentence already undergone by him and the sentence of fine of Rs.80,000/- is reduced to Rs.40,000/-, in default of payment of fine to further undergo rigorous imprisonment of four months. 11. Revised jail warrants be prepared. 12. Accordingly, the appeal stands disposed of. (GUMAN SINGH),J. Srawat/- item no.H/19 9 S.B.CRIMINAL APPEAL NO.1320/2007 (Jagannath Vs. State) Date of Judgment : 08-10-2009 HON'BLE MR.JUSTICE GUMAN SINGH Mr.RR Baisla, for the appellants. Mr.Paresh Choudhary, Public Prosecutor for State. For these reasons, the impugned judgment passed by learned Special Judge, N.D.P.S. Cases, Chhabara, Distt. Baran dated 17.5.07 in sessions case no.142/2005 is modified and conviction of accused-appellant Jagannath under Sec.8/18 of the NDPS Act, is maintained and the accused-appellant is directed to be released on the substantive sentence already undergone by him and the sentence of fine of Rs.80,000/- is reduced to Rs.40,000/-, in default of payment of fine to further undergo rigorous imprisonment of four months. Revised jail warrants be prepared. Accordingly, the appeal stands disposed of. (See separate judgment) (GUMAN SINGH),J. Srawat/- item no.H/19