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Judgment
Virender Singh, J
This is an appeal under Section 374(2) of CrPC against judgment and order dated 05.03.2022 passed by Special Judge, (NDPS), Jabalpur in Special Case No.42/2016, whereby the appellant is held guilty under Section 8/20(b)(ii))(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the Act’) and sentenced to undergo 2½ years’ R.I. with fine of Rs.10,000/- and in default of payment of fine, to suffer 2 months’ R.I. for having 2 kgs & 150 grams of cannabis (Ganja) in his illegal possession.
Facts giving rise to the present appeal are that on 27.09.2016, Sub-Inspector Mahima Raghuwanshi (PW7), Police Station Ranjhi, while she was on duty, received an information that Munna @ Munnu Pandit (appellant) who runs a kirana shop in his house, has brought contraband from somewhere and has kept it in his house unlawfully. She entered the information in Roznamcha-sana; directed Constable Sanjay to call two independent witnesses, who came back with Jagdish and Bablu @ Balkishan, intimated her senior officer C.S.P. Ranjhi, prepared panchnama of not obtaining for search warrant due to paucity of time and proceeded towards the spot along with the force, independent witnesses and with all paraphernalia. On the spot i.e. appellant’s house, she found him sitting at his shop. She intimated him regarding the information received as well as about his right of search to be taken in presence of a nearest Magistrate or a Gazetted Officer. After obtaining his consent to be searched by herself, she first gave her own search and search of her police team along with search of independent witnesses and thereafter, searched him personally. Nothing was found in his personal search. Thereafter, she searched his house as well as kirana shop and found a white-yellow bag kept near the platform of kirana shop. On search, it was found that the bag was containing ‘Ganja’ as she could identify by their looks and strong smell. Total quantity of Ganja was found to be 2.150 kgs. The contraband was homogenized and two samples of 50 grams each were taken out. Samples as well as remaining Ganja were duly sealed and after completion of the exercise, the accused was arrested. She recorded Dehati Nalishi. The contraband along with the accused were brought to the Police Station, where Crime No.515/2016 for the offence under Section 8/20 of the Act was registered. The samples were sent to Forensic Science Laboratory, Bhopal. Corresponding report indicated that the samples contained Ganja. All the proceedings taken on and off the spot as well as steps taken at pre and post recovery were documented. On completion of the investigation, the police filed charge-sheet.
Following documents were prepared during the entire process of alleged search and seizure of the contraband :
Sl.No.
Exhibit
Particulars
(I)
Ex.P/1
Report regarding apprise of discrete information to CSP Ranjhi
(II)
Ex.P/2
Panchnama regarding apprise of discrete information to independent witnesses
(III)
Ex.P/3
Panchnama as to not obtaining for search warrant due to paucity of time
(IV)
Ex.P/4
Panchnama as to availability of accused at the spot
(V)
Ex.P/5
Panchnama as to apprise of information to the accused
(VI)
Ex.P/6
Panchanama as to right of accused to be searched before Magistrate or Gazetted Officer
(VII)
Ex.P/7
Panchnama regarding search of police force
(VIII)
Ex.P/8
Panchanama as to search of the accused
(IX)
Ex.P/9
Panchnama as to search of his shop and house
(X)
Ex.P/10
Panchnama as to recovery of contraband
(XI)
Ex.P/11
Panchnama as to identification of the contraband
(XII)
Ex.P/12
Panchnama as to making of entire contraband homogeneous
(XIII)
Ex.P/13
Panchnama as to weighing machine and weights
(XIV)
Ex.P/14
Panchnama as to weighing of the contraband
(XV)
Ex.P/15
Panchnama regarding seal of the contraband
(XVI)
Ex.P/16
Property seizure memo
(XVII)
Ex.P/17
Arrest memo of the applicant
(XVIII)
Ex.P/18
Panchanama as to arrest of the appellant to his relatives
(XIX)
Ex.P/19
Notice under Section 160 Cr.P.C.
(XX)
Ex.P/20
Statement of Panch witness Balkishan @ Bablu
(XXI)
Ex.P/21
Roznamcha Sana
(XXII)
Ex.P/22
Panchnama as to deposit of seized contraband into Malkhana
(XXIII)
Ex.P/23
Letter from S.P. Jabalpur to FSL as to report
(XXIV)
Ex.P/24
Receipt
(XXV)
Ex.P/25
Report of FSL
(XXVI)
Ex.P/26
Statement of independent witness Jagdish Kumar Pillai
(XXVII)
Ex.P/27
FIR
(XXVIII)
Ex.28
Details of the Crime to SP Jabalpur from SHO Ranjhi
(XXIX)
Ex.P/29
Notice
(XXX) TO (XXXVI)
Ex.P/30to 36
Notice under Section 160 Cr.P.C.
(XXXVII)
Ex.P./37
Nazri Naksha
(XXXVIII)
Ex.P/38
Memo to Zonal Officer, Municipal Corporation, Ranjhi from SHO Ranjhi
(XXXIX)
Ex.P/39
Roznamcha Sana
(XL)
Ex.P/40
Panchnama as to the credible information
(XLI)
Ex.P/41
Roznamcha Sana
(XLII)
Ex.P/42
Certificate as to work
(XLIII) TO (XLIX)
Ex.P/43to 49
Roznamcha Sana
(L)
Ex.P/50
Dehati Nalishi
(LI)
Ex.P/51
Roznamcha Sana
(LII)
Ex.P/52
Notice as to arrest
(LIII)
Ex.P/53
Inventory
(LIV)
Ex.P/54
Certified copy of Executive Magistrate
(LV) TO
(LXIV)
Ex.P/55 to P/64
Photographs of proceedings
(LXV)
Ex.P/65
Panchnama as to certification of weighing machine
(LXVI)
Ex.P/66
Panchnama as to weighment
(LXVII)
Ex.P/67
Certificate of Executive Magistrate
(LXVIII)
Ex.P/68
Details of proceedings
(LXIX)
Ex.P/69
Revenue order sheet
The appellant was charged under Section 8 read with Section 20(b)(ii))(B) of the Act. He denied the charges and claimed for trial. After trial, on appraisal of evidence on record, the ld. trial Court convicted and sentenced the appellant as stated in para 1 above, hence this appeal.
The appellant has preferred this appeal on several grounds but during arguments, the ld. counsel representing him submitted that he does not want to press the appeal on merits. He submitted his arguments only on the quantum of sentence and does not challenge the impugned conviction. His limited prayer is that the appellant was on bail during trial and he never misused the liberty granted to him. He remained in custody from 28.09.2016 to 15.12.2016 (i.e. 2 months & 17 days) and thereafter, from the date of judgment i.e. 05.03.2022, he is still in jail. There is no male member in his family. He used to run a small shop in the village to earn his livelihood. His age is about 60 years. He is suffering from serious ailments and is having very bad physical condition. He is paralytic and facing hardship in performing daily routine in absence of proper assistance. His condition in jail is deteriorating day-by-day. He has not committed any offence after the incident in question. Therefore, it is prayed that his sentence may be reduced to the period already undergone.
Supporting the judgment and order of the ld. trial Court, the ld. Panel Lawyer has prayed for dismissal of the appeal. He further submitted that the appellant has criminal record of 7 cases but has not supplied the particulars of those cases and has admitted that no other case under the NDPS Act has been registered against him earlier.
I have considered the rival contentions of the parties.
Considering the submissions of the ld. counsel for the appellant, nature of the substance, its quantity and period of jail sentence already undergone by him which is about 7 months as on the date, I am of the considered view that the ends of justice would be met if the appellant is sentenced for the period already undergone by him with some enhancement in the fine amount.
Consequently, the appeal is partly allowed. The impugned conviction is hereby maintained. However, the jail sentence imposed on appellant is reduced to the period already undergone by him and the sentence of fine is enhanced from Rs.10,000/- to Rs.20,000/-. He be released forthwith, subject to payment of fine and if not required in any other case. Amount of fine, if any, deposited earlier shall be adjusted.
The order of the ld. trial Court regarding disposal of property is hereby confirmed.
With the aforesaid modification, the present appeal is partly allowed and disposed off.
All pending IAs stand closed.