1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. ORDER Dinesh Kumar Vs. State of Rajasthan SB CRIMINAL APPEAL NO.1043/2007. Under Section 374 of the Code of Criminal Procedure. DATE OF ORDER: 22nd January, 2009. PRESENT HON'BLE MR. JUSTICE S.P. PATHAK Mr. Manoj Sharma for the appellant. Mr. Deen Dayal Sharma PP for the State. BY THE COURT: This criminal appeal under section 374 of the Code of Criminal Procedure has been filed against the judgment and order dated 13th April, 2007 in Sessions Case No.68/2002 passed by the learned Special Judge, Sikar whereby the accused-appellant has been convicted and sentenced under section 8/20 of the NDPS Act for 10 years rigorous imprisonment and a fine of Rs.1,00,000/-, in default of payment of fine to further undergo six months simple imprisonment. Briefly stated the facts of the present case are that PW- 1 Kalpana Rathore in the capacity as S.H.O., Police Station, Kotwali, Sikar received a secret information Ex.P-1 on 21.7.2002 at 10.00 a.m. to the effect that one lin and thin person wearing white shirt and a cream colour pant with an attachie in his hand containing ganja will go to Ganganagar and will be boarding a bus 2 from Kalyan circle at Sikar. PW-1 Kalpana Rathore recorded the above information in Ex.P-1 and along with police party started from the police station. The accused was seen holding a black attachie in his hand at the place intimated by the informer. The accused was stopped and asked his name. The accused disclosed his name as Dinesh Kumar Sharma son of Laxmi Narain Sharma resident of Ganganagar. The option was given to the accused as to whether he wanted to give his search before her or before a gazetted officer or a Magistrate. The accused gave consent in writing through Ex.P-2 that his search be taken by the police party. On opening the attachie, contraband material (ganja) was found. From a nearby shop the scales to weigh the material was obtained. On weighing the contraband material recovered from the attachie it was found to be 4 kg 900 gm. The contraband material was seized and sealed. Two samples of 250 gm. each were taken, sealed and marked as A-I and A-II. The rest of the ganja was sealed in different packet. The seizure memo Ex.P-3 of ganja was prepared at the spot. In the personal search of the accused, bus ticket of Ganganagar was found, that was also seized by the police through Ex.P-4. Thereafter, the police party reached at the police station and repot Ex.P-6 was lodged. The accused was arrested. The samples were sent to the FSL for chemical analysis. After completion of investigation, complaint was filed. The matter was tried by the learned Special Judge, Sikar. A charge under section 8/20 of the NDPS Act was framed against the accused to which he 3 denied and claimed trial. In support of its case, the prosecution examined as many as 12 witnesses and tendered several documents. In the statement recorded under section 313 Cr.P.C., the accused denied the prosecution story and stated that he has been falsely implicated in the case. The learned trial court vide its judgment and order dated 13th April, 2007 convicted and sentenced the accused as stated here-in-above. Hence, this appeal. I have heard learned counsel for the accused appellant as well as learned public prosecutor and carefully perused the material available on record. It is contended by the learned counsel for the accused appellant that in the instant case mandatory provisions of the NDPS Act have been given a complete go by. The secret information was not sent to the higher officials. It is also contended that for personal search, option was not given. In the last, it is submitted that the ganja which has been recovered from the accused appellant is below the prescribed commercial quantity as it is only 4 kg 900 gm., therefore, the punishment which has been awarded to the accused is excessive. On the other hand, learned public prosecutor contends that the learned trial court has correctly exercised its discretion in awarding sentence, therefore, the accused was not liable to be dealt with sympathetically. I have considered the submissions made before me. 4 It is to be seen that in the instant case, on receiving information it was reduced in writing vide Ex.P-1. The police party reached at the spot. The accused was apprehended by the police. Option was given to the accused to get himself searched either by the police officials or in the presence of a Magistrate or a gazetted officer to which the accused gave consent that he could be searched by the police party. On the search of the attachie contraband material ganja was recovered. On weighing it was found 4 kg 900 gm. As per schedule appended with the NDPS Act, the recovered contraband material was below prescribed commercial quantity and that aspect of the matter has not been disputed before me. PW-1 Kalpana Rathore, PW-2 Mahendra Singh, PW-3 Prem Singh, PW-4 Bhagwan Singh, PW-5 Inderjeet Singh, PW-6 Ramashanker and PW-7 Harphool Singh are the witnesses before whom the accused was apprehended. All the above witnesses have stated in one voice that the accused was apprehended by the police and on the search being taken, the contraband material ganja was recovered which was on weighing found to be 4 kg. 900 gms. Except small discrepancies, the sum and substance of the statement of the witnesses could not be shattered in the cross- examination. The samples sent to the FLS for examination in sealed condition have been proved by PW-11 Prahlad Singh. In the FSL the samples were found intact and their seals were not found tampered. The learned trial court has discussed the 5 evidence in detail and there does not appear any illegality in appreciation of the evidence by the learned trial court. Having discussed the evidence led by the prosecution, now it is to be seen as to whether the sentence awarded in this case is adequate or needs to be modified. It is not in dispute before me and cannot be disputed that in the present case ganja has been recovered which was found to be below prescribed commercial quantity. If that be so, then in view of the amendment made in the NDPS Act, the sentence could be awarded upto 10 years. In this regard, it appears that the accused at the time of committing offence was a young boy of 18 years of age and as per the submissions of the learned counsel, he was only a labourer and for last six years he is in jail and his family has been ruined. The accused is in jail since 21.7.2002, therefore, it can easily be presumed that he has suffered nearly six years sentence in the jail. In the over all circumstances of the case, I deem it proper to maintain the conviction of the accused under section 8/20 of the NDPS Act but to reduce his sentence of imprisonment to the period already undergone by him. In view of the fore-going discussion, the appeal is liable to be allowed in part only on quantum of sentence. In the result, the appeal is partly allowed. The conviction of the accused recorded by the learned trial court vide its judgment dated 13th April, 2007 is maintained. The sentence of 6 imprisonment is reduced to the period already undergone by him. The sentence of imprisonment awarded by the learned trial court is modified to the above extent. The accused is in jail and if he is not required in any other case, he be set at liberty forthwith. (S.P. PATHAK),J.