Vikas And Anr vs Union Of India

All these three appeals have arisen from the common judgement dated 31/07/2013 passed in Special S.T. No. 101/2009 by Special Judge, N.D.P.S.

Act, Garoth, District Mandsaur, therefore, they are heard analogously and are being decided by this common judgement.

All the appellants have been convicted by the learned trial Court for the offences punishable under Sections 8/18(b) and 8/21(b) of Narcotic Drugs

and Psychotropic Substance Act, 1985 (here-in-after referred to as “the Act, 1985) and have been awarded 10 years R.I. and fine of Rs.1,00,000/-

, 5 years R.I. and fine of Rs.50,000/- each respectively and in default of payment of fine, further to undergo two years and six months R.I.

Respectively. Their sentences are directed to run consecutively.

The appellant Vinod Singh was also held guilty for the offence under Section 8/18(b) read with Section 29 of the N.D.P.S. Act and awarded 10

years R.I. and fine of Rs.1,00,000/- and in default of payment of fine further to undergo one year R.I. He has filed a separate appeal, which is pending

consideration separately.

The prosecution case in short is that on 04.04.2007, Inspector Dharam Singh Meena received a secret information that appellants Bhopal Singh,

Vikas and Ghisalal have illegal opium and heroine in their possession, which they are going to deliver it to somebody at Kurawar Road Dhaba by silver

coloured vehicle Tavera. They will take Narayangarh, Kyampur, Kurawar route. Particulars of the persons were also received in the information.

Acting on this information, Inspector Meena completed pre-trap formalities, prepared requisite documents and arranged a raid. On 05.04.2007, at

about 6:30 in the morning, they ambush near nullah of village Devri. They also called passersby Ramprasad and Ramlal and requested them to be

Panch witnesses in the raid. They waited for the persons. At about 8:30 in the morning a silver colour Tevera bearing Registration No. RJ-09 UA

0286 came from Kurawar side. They stopped it and found three persons inside it, who disclosed their names as Bhopal Singh, Ghisalal and Vikas

Sharma (the appellants). They were informed about their statutory right of search by gazetted officer and after obtaining their consent, the vehicle

was searched. 14 kg opium and 1 kg heroin kept in polybags was found, for which they were having no licence. After completing usual requisite

proceedings on the spot like weighing, sampling and sealing of the substance seized on the spot, the police party came back and registered crime

No.5/07 on the same evening at about 21:30 hours. Inspector D.S. Meena assigned the investigation. He obtained all the documents relating to the

seizure etc. from Inspector Rakesh Bhargava; who conducted all the proceedings on the spot and sent the seized substance to the Government Opium

and Alkaloids Factory, Neemuch, which later, confirmed that the seized substances were opium and heroine. On interrogation, Bhopal Singh revealed

that they have purchased opium from Vinod Singh and heroine from Rajkumar Sharma. The police arrested both of them. Vinod Singh admitted the

alleged sale while Rajkumar denied in their statements under Section 67 of N.D.P.S. Act. Therefore, Vinod was impleaded as accused. After

following the mandatory procedure, the police filed charge-sheet, which ended in the conviction of all the appellants as stated in para 2 above.

All the appellants have preferred separate appeals on the various grounds, but during arguments, learned counsel representing them has submitted

that he does not want to press merits of the case or their conviction. His limited prayer is that the sentence of the appellants be directed to run

concurrently.

Learned counsel for the appellants has submitted that in chemical examination the content Dyacetile Morphine in the heroine seized from the

appellants was found 18.05% which is non-commercial quantity and the learned trial Court has itself admitted and considered this fact. and has

convicted them under Section 8/21 (b) instead of Section 8/21 (c) following the judgment of Hon'ble the Supreme Court in the case of E. MichaelÂ

Raj vs. Narcotics Control, Nagpur reported in AIR 2008 SC 1720. He further submitted that the appellants were taken in custody on 05.04.2007 and

since then they are in jail and have completed 11 years, 1 month and 1 day till date. The appellant Vikas has two minor children and old parents.

Almost similar is the family status of other appellants. They all are sole bread winner of their family and have responsibility on their shoulder of their

old parents. Their family is living in penury and facing financial hardships. They are not the actual culprits. They were only carriers and were hiredÂ

only for Rs. 15,000/-. It is also submitted by the learned counsel that the appellants have no criminal record. No other case is ever registered against

them.

Therefore, a lenient view may be adopted. He prayed that the impugned judgment and order be set-aside qua the direction regarding running of their

sentence consecutively.

Learned Special Public Prosecutor has opposed the prayer stating that as huge quantity was recovered from possession of the appellants, the trial

Court has rightly awarded the sentence. He prayed for dismissal of the appeals.

I have considered rival contentions of the parties and have perused the record.

Having regard to the fact that this is the first case registered against the appellants, they are not habitual criminal, they have no criminal

antecedents, quantity of heroine was little higher than the small quantity, both psychotropic substances were at the same time, submissions of the

learned counsel representing them regarding their criminal antecedents and financial and family condition are not controverted by the learned Special

Public Prosecutor. Considering the aforesaid and other facts and circumstances of the case coupled with the period of detention, in my considered

opinion, ends of justice would be sub-served if the jail terms of the appellants are directed to be run concurrently.

In view of the aforesaid, conviction of the appellants and their sentences awarded by the learned trial Court are hereby confirmed. The appeals, so

far as they relate to the direction of the learned Trial Court to run the sentences consecutively, are allowed. The direction is modified to the extent

that both the sentences of the appellants shall run concurrently.

With the aforesaid modification in the direction of the learned trial Court, all the appeals stand partly allowed and disposed of.

Order of the trial Court regarding disposal of property also stands confirmed.

A copy of this order be placed in CRA Nos.1766/13 & 154/2014.