Kailash Kirar Vs. the State of Madhya Pradesh - Court Judgment

IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR SINGLE BENCH : HON’BLE MR. JUSTICE N.K.GUPTA, J.Criminal Appeal No.1713/2011 Raisingh Tanwar VERSUS State of Madhya Pradesh Criminal Appeal No.1866/2011 Kailash Kirar VERSUS State of Madhya Pradesh --------------------------------------------------------------------------- Shri Ramesh Tamrakar,counsel for the appellant Raisingh Tanwar. Shri P.D.Gupta, counsel for the appellant Kailash Kirar. Shri Ajay Tamrakar, Panel Lawyer for the State/respondent. ---------------------------------------------------------------------------

JUDGMENT

(Delivered on the 17th day of September, 2013) Since both the appeals are related with the common judgment dated 28.7.2011, therefore, they are hereby decided by this common judgment.

2. The appellants are convicted for the offence punishable under section 8/21 (b) of Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter it will be referred to as 'NDPS Act') vide judgment dated 28.7.2011 in -:- 2 -:-                                                      Criminal Appeal No.1713 of 2011 Criminal Appeal No.1866 of 2011 special case No.8/2010, whereby the appellant Raisingh was sentenced with 4 years rigorous imprisonment with fine of Rs.25,000/-. In default of payment of fine, he was to undergo for 6 months rigorous imprisonment, whereas the appellant Kailash was sentenced with 18 months rigorous imprisonment with fine of Rs.5,000/-. In default of payment of fine, 3 months additional rigorous imprisonment was directed. Being aggrieved with the conviction and sentence, the appellants have preferred the present appeal.

3. The prosecution's case, in short, is that, on 29.4.2010, an information was received to Sub Inspector Sanjay Dubey, who was posted in Central Squad, Narsinghpur that the accused persons were coming with brown sugar on a motorcycle for selling it. Therefore, 2 witnesses Tejbal and Suraj were summoned by Shri Sanjay Dubey and a memo, Ex.P/2 was prepared. Entry was made in Rojnamchasana of Outpost Stelash, District Narsinghpur. A report was sent to SDOP, Narsinghpur through constable Ranjeet. Thereafter, Sanjay Dubey alongwith the force and witnesses went to the spot and the appellants were surrounded. The appellants Raisingh, Kailash and one Sunil @ Nanhe Bhai were found at the spot. They were given information that they could get their search by a gazetted officer or by a Magistrate. They gave their option that search -:- 3 -:-                                                      Criminal Appeal No.1713 of 2011 Criminal Appeal No.1866 of 2011 may be done by Shri Sanjay Dubey. Ultimately, search took place. Various memos were prepared and it was found that the appellant Raisingh had 115 gms of brown sugar, whereas the appellant Kailash had 20 gms of brown sugar. Two samples, each of 5 gms were taken from the seized brown sugar and sent to the Forensic Science Laboratory and a report has been received that the seized article was brown sugar. A charge-sheet was filed before the trial Court.

4. The appellants abjured their guilt. They took a specific plea that they were falsely implicated in the matter. They were brought from their houses and falsely implicated. In support of their defence, Sunderlal (D.W.1), Waktu (D.W.2) etc. were examined.

5. The learned Special Judge, after considering the evidence adduced by the parties, convicted and sentenced the appellants as mentioned above.

6. I have heard the learned counsel for the parties.

7. The learned counsel for the appellants have submitted that percentage shown by the Forensic Science Laboratory indicates that Raisingh had only 15 gms of brown sugar in pure because percentage of morphine was found approximately 13%. Similarly, the appellant Kailash had only 3 gms of pure brown sugar and therefore, their sentence must be according to the quantity of pure morphine. The -:- 4 -:-                                                      Criminal Appeal No.1713 of 2011 Criminal Appeal No.1866 of 2011 appellant Raisingh remained in the custody for 39 months, whereas the appellant Kailash remained in the custody for more than 8 months and therefore, it is prayed that their sentence may be reduced to the period for which they remained in the custody.

8. After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case, though the learned counsel for the appellants did not challenge the conviction directed against the appellants but, however, the evidence may be considered on merits also. The independent witnesses Suraj Kahar (P.W.1) and Tejbal (P.W.2) have turned hostile. However, the testimony of Sub Inspector Sanjay Dubey (P.W.6) appears to be believable. He has followed the various principles of investigation as mentioned in various provisions of NDPS Act. His testimony was duly corroborated by Head constable Vijaypal Singh (P.W.3), constable Prakash Singh (P.W.4) and other witnesses. He sent the information received from informer to SDOP concerned and there was no time to get the search warrant, therefore, Sanjay Dubey went to the spot. He gave an opportunity to the appellants that their search may be done by a gazetted officer or by the Magistrate and thereafter, the recovery was made. The seized articles were duly weighed and sealed. Two samples -:- 5 -:-                                                      Criminal Appeal No.1713 of 2011 Criminal Appeal No.1866 of 2011 from each article were taken and sent soon after the seizure to the Forensic Science Laboratory. The Forensic Science Laboratory found the samples to be sealed one and the report was given. The entire property seized at the time of the incident was produced before the trial Court and therefore, when there was no enmity of Shri Sanjay Dubey with the appellants then, his testimony can be believed because he followed the various provisions of NDPS Act while he made the recovery and it is proved that the appellants had brown sugar with them in a different quantity. The trial Court has rightly convicted the appellants for the aforesaid offence.

9. So far as the sentence is concerned, the law prevalent at the time when the seizure was made, it was the view of Hon'ble the Apex Court that quantity of contraband substance be counted according to the percentage of the contraband substance and therefore, looking to the percentage of the contraband substance shown in the report, Ex.P/34, it could be said that the appellant Raisingh had 15 gms of pure brown sugar, whereas the appellant Kailash had 3 gms of pure brown sugar. Under such circumstances, the sentence directed against the appellants appears to be harsh. The appellant Kailash remained in the custody for more than 8 months, whereas the appellant Raisingh -:- 6 -:-                                                      Criminal Appeal No.1713 of 2011 Criminal Appeal No.1866 of 2011 remained in the custody for 39 months. Under such circumstances, where the appellants were the first offenders and pure quantity of brown sugar was less then, their sentence can be reduced to the period for which they remained in the custody. Also, fine imposed upon the appellant Raisingh can be reduced.

10. On the basis of the aforesaid discussion, the appeals filed by the appellants are hereby partly allowed. The conviction directed against the appellants for offence punishable under section 8/21 (b) of NDPS Act is hereby maintained but, sentence of both the appellants is reduced to the period for which they remained in the custody. However, fine imposed upon the appellant Raisingh is reduced from a sum of Rs.25,000/- to a sum of Rs.10,000/-, whereas there is no change in fine amount imposed upon the appellant Kailash. In default of payment of fine, the appellant Raisingh shall undergo with rigorous imprisonment for 6 months.

11. The appellants are on bail. It is informed that they have deposited the fine amount and therefore, their bail bonds shall stand discharged. -:- 7 -:-                                                      Criminal Appeal No.1713 of 2011 Criminal Appeal No.1866 o”

12. A copy of the judgment be sent to the trial Court alongwith its record for information and compliance. (N.K.GUPTA) JUDGE 17 9/2013 Pushpendra