Union of India vs Wasim Ali @ Bablu

S.R. Waghmare, J.—By this appeal filed u/s 377(3) of the Cr.P.C., appellant Union of India/Central Bureau of Narcotics, Ratlam being aggrieved by the judgment and order dated 13/11/2009 passed by the Special Judge (NDPS), Ratlam in Sessions Trial No. 14/2008, whereby the respondent has been convicted for offence u/s 8/21(b) of NDPS Act and sentenced to undergo 3 years rigorous imprisonment with fine of Rs. 5,000/- and in case of default of the fine, he was to undergo additional one year''s rigorous imprisonment. Briefly stated that the respondent/accused Wasim Ali has been convicted for offence u/s 21(B) of the NDPS Act and sentenced to undergo 3 years R.I. with fine of Rs. 5,000/-. Whereas according to Counsel for the applicant/CBN, if respondent/accused Wasim Ali should have been convicted for offence u/s 21(C) of the NDPS Act. Moreover, Counsel has also vehemently urged that the sentence of three years R.I. and fine of Rs. 5,000/- is highly inadequate and requires to be enhanced under the circumstances considering the fact that the respondent/accused was found in possession of 1.1 kg. heroine. And according to the ratio laid down in the case of E. Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau: 2008 Cri.L.J. 2250, the Apex Court had directed that it was the percentage of morphine which has to be considered for conviction and not the actual weight of the contraband, then in the present case even with only the purity of the contraband heroin comes to 66.77 gms. which is quite high under the circumstances. The FSL has clearly certified that the percentage of diacetylmorphine is only 6.07. Moreover, there is no doubt regarding possession of the heroine by respondent Wasim Ali and although the learned trial Court has convicted the respondent/accused for the offence it should have been u/s 21(C) of the NDPS Act. Hence, Counsel prayed for enhancement of sentence.

On considering the above submissions, I find that the impugned judgment is based on proper appreciation of evidence and the witnesses of recovery viz. p.w. 2

Chhampalal and p.w. 5 Musharaff have not supported the recovery and the entire prosecution story is therefore, vitiated. Moreover, if at all this is the first offence by the respondent/accused and he was only 21 years of age at the time of the incident and the impugned judgment therefore, does not call for any interference.

I also find from the record that the offence is of the year 2008 and respondent/accused Wasim Ali has already undergone the sentence. Moreover, considering the young age of the respondent/accused and on the principles of natural justice, it would not be appropriate to enhance the sentence merely on the ground that it is an inadequate under the circumstances. Moreover, the fact that the witnesses of recovery have turned hostile in Court can not be marginalized and so also the fact that the leave to file appeal regarding the other co-accused, who have already been acquitted from the same offence, has been rejected today in M. Cr. C. No. 559/2010. A valuable right has accrued to the accused and it cannot be frittered away on such scanty allegations; there is no other evidence available on record against the respondent/accused Wasim Ali and he has almost undergone the entire sentence imposed by the trial Court.

In this light, I find that the impugned judgment is based on valid and cogent reasons and proper marshalling of evidence and no infirmity can be found with the impugned judgment of the trial Court and there is no merit in the appeal and the trial Court has properly sentenced the respondent/accused for a term of 3 years. The appeal is, therefore, dismissed as being sans merit. C.c. as per rules.