[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. CRIMINAL APPEAL NO. 1434/2002 PARVEZ @ PARI @ PRAVEEN & ORS. Vs. UNION OF INDIA S.B. CRIMINAL APPEAL UNDER SECTION 374(2) 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. Biri Singh for the accused-appellants. 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 No.1 Parvez has been convicted under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act of 1985') and the accused-appellant No.2 Javed Khan and accused-appellant No.3 Munna Khan have been convicted under Section 8/29 of the Act of 1985 and they have been sentenced to undergo rigorous imprisonment for 10 years and a fine of Rs. 1,00,000/-, in default of payment of fine to further undergo simple imprisonment for three years. [2] Learned counsel Mr. Biri Singh, appearing on behalf of the accused-appellants has contended that pursuant to the impugned judgment dated 27.09.2002, all the accused-appellants are in jail. It is further submitted that the accused-appellant No.1 Parvez is in custody since 06.05.2001 i.e. about 7 years and 2 months, accused-appellant No.2 Javed Khan is in custody since 19.08.2001 i.e. about 6 years and 11 months and the accused- appellant No.3 Munna Khan is in custody since 14.02.2002 i.e. about 6 years and 5 months. Learned counsel for the accused-appellants 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 [3] 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.” 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-appellants submits that as the accused-appellants Parvez, Javed Khan and Munna Khan have already undergone the sentence of about 7 years and 2 months, 6 years and 11 months and 6 years and 5 months respectively in custody, the ends of justice would be subserved if the sentence of rigorous imprisonment for 10 years awarded to them by the Special Judge, is reduced to the period already undergone by them in custody. Per contra, learned counsel Mr. Madnani, appearing on behalf of respondent Union of India referred the judgment rendered by the Hon'ble Supreme Court in the case of Union of India Vs. Kuldeep Singh, reported in 2004 Cr.L.R. (SC) 1, wherein the Hon'ble Supreme Court has held that “The discretion does not appear to have been judiciously and judicially exercised by the High Court in this case. When the volume of contraband articles is taken note of, it is sufficient for a conclusion that the quantity of finished product out of it which would have been extracted it would have been nearly 300 kilograms of heroine, and the [4] accused would have got about forty kilograms as admitted by him. The disastrous effect (of this quantity of heroine) would be mind-boggling. The High Court, seems to have been swayed by the age of accused's father, his family problems and more importantly he being not a 'habitual offender'. Such considerations are really meaningless when one considers the fact that the accused was in possession of contrabands which would have destroyed the health and mental equilibrium of thousands of people. The Court was not dealing with an accused charged with commission of any minor offence where he being not a habitual offender may have some relevance. But it is really inconsequential for a drug trafficker and smuggler. The reasons given by the High Court to reduce the sentence, according to us, have no foundation. The inevitable conclusion is that the appeal deserves to be allowed which we direct. To put it differently, the sentence imposed by the trial Court is restored.” 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 [5] learned counsel for the accused-appellants as also the judgment of the Hon'ble Supreme Court rendered in the case of Union of India Vs. Kuldeep Singh (supra), referred by the counsel appearing for the respondent Union of India. Admittedly, in the instant case, 500 gms. of heroine was recovered from the possession of accused-appellant Parvez and as per the FSL Report, the actual quantity of heroine was assessed as 27.91% and that comes to 139.55 gms., which is greater than the small quantity but less than the commercial quantity. As stated herein above, the actual quantity of heroine recovered from the possession of the accused-appellant Parvez, is less than the commercial quantity. I have carefully gone through the judgment rendered by the Hon'ble Supreme Court in the case of Union of India Vs. Kuldeep Singh (supra), wherein the sentence was reduced by the High Court and the quantity which was recovered from the accused was nearly 300 kilograms. In this case, the Hon'ble Supreme Court has considered that looking to the quantity of heroine which would have destroyed the health and mental equilibrium of thousands of people, reduction of sentence by the High Court was not considered proper as the High Court has reduced the sentence of the accused on the ground of age of the accused's father and his [6] family problems. The ratio decided by the Hon'ble Supreme Court in the case of Union of India Vs. Kuldeep Singh (supra), is not applicable to the facts and circumstances of the present case as in the instant case, the quantity which was recovered from the accused-appellant is less than the commercial quantity but greater than the small quantity. Thus, 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 considering the overall facts and circumstances of the case, the conviction of the accused-appellant No.1 Parvez under Section 8/21 of the NDPS Act and conviction of the accused-appellant No.2 Javed Khan and accused-appellant No.3 Munna Khan under Section 8/29 of the NDPS Act is upheld, but as accused- appellant No.1 Parvez has already undergone the sentence of about 7 years and 2 months, accused- appellant No.2 Javed Khan has already undergone the sentence of about 6 years and 11 months and the accused-appellant No.3 Munna Khan has already undergone the sentence of about 6 years and 5 months in custody, whereas the sentence awarded to these accused-appellants is rigorous imprisonment for 10 years, this Court is of the view that the ends of justice would be subserved if the accused- [7] appellants are sentenced to the period already undergone by them in custody and the fine of Rs. 1,00,000/-, as awarded by the Special Judge, also deserves to be reduced to Rs. 50,000/- and in default of payment of fine of Rs. 50,000/-, the accused-appellants will have to undergo the sentence as awarded by the Special Judge i.e. simple imprisonment for 3 years. 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 Parvez under Section 8/21 of NDPS Act and accused-appellants Javed Khan and Munna Khan under Section 8/29 of the NDPS ACt is concerned, the same is upheld but instead of sentence of rigorous imprisonment for 10 years as awarded by the Special Judge, all the accused appellants are sentenced to the period already undergone by them in confinement and the fine is reduced from Rs. 1,00,000/- to Rs. 50,000/- for each of the accused-appellant and in default of payment of fine, the accused-appellants will have to undergo the sentence as awarded by the Special Judge i.e. simple imprisonment for 3 years. Only after depositing the amount of fine of Rs. 50,000/-, the accused-appellants (1) Parvez @ Pari @ Praveen S/o Safi Ahmed, (2) Javed Khan S/o Shokat Ali and (3) Munna Khan S/o Safi Mohd., who are at present lodged in Central Jail, Kota, shall [8] be set at liberty forthwith, if not required to be detained in any other case. In the result, 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)