12. It is specifically submitted that the appellant has already
undergone custodial sentence of about two months and six days; the
incident is of the year 2013, and the appellant has faced prolonged
mental agony of trial and appeal; he is a first-time offender with no
criminal antecedents; the quantity involved does not fall in the category
of commercial quantity warranting stringent punishment. On these
grounds, it is prayed that this Court may take a lenient view and reduce
the sentence to the period already undergone, while maintaining the
fine amount.
13. Per contra, learned counsel appearing for the State has
supported the impugned judgment and submits that the same is well-
reasoned and based on proper appreciation of evidence. It is
contended that the prosecution has successfully proved its case by
leading cogent and reliable evidence, and the learned trial Court has
rightly appreciated the same. He submits that the recovery of
contraband has been duly established and the chain of custody has
remained intact. The samples were properly sealed and sent for
chemical examination, and the FSL report confirms that the seized
substances are psychotropic in nature. It is further submitted that mere
non-examination of independent witnesses is not fatal to the
prosecution case. In this regard, reliance is placed upon State (Govt.
of NCT of Delhi) v. Sunil,(2001) 1 SCC 652, wherein the Supreme
Court has held that the testimony of official witnesses cannot be
discarded merely on the ground that they are police personnel, if their
evidence is otherwise trustworthy.
14. Learned counsel for the State further submits that the procedural
requirements under the NDPS Act have been substantially complied
with, and no prejudice has been caused to the appellant. It is also
argued that once recovery is proved, the presumption under Sections
35 and 54 of the NDPS Act operates against the accused, and the
burden shifts upon him to explain possession, which the appellant has
failed to discharge.
15. With regard to the contention relating to investigation by the same
officer, learned State counsel submits that the applicability of Mohan
Lal v. State of Punjab (2018) 17 SCC 627, would depend upon the
facts of each case, and unless prejudice is demonstrated, the
conviction need not be set aside.
16. On the question of sentence, learned State counsel submits that
the sentence awarded by the trial Court is already lenient. However, it is
fairly submitted that this Court may exercise its discretion appropriately,
considering the period already undergone by the appellant.
17. Heard learned counsel for the parties at length and has perused
the entire record of the case with due care and circumspection.
18. At the outset, it is pertinent to note that in an appeal against
conviction, the appellate Court is duty-bound to re-appreciate the
evidence on record. However, unless the findings recorded by the trial
Court are shown to be perverse, illegal or based on mis-appreciation of
evidence, interference is not warranted. The NDPS Act being a
stringent statute, the procedural safeguards assume great significance.
The Supreme Court in Noor Aga v. State of Punjab (2008) 16 SCC
4`7, has held that strict compliance of statutory safeguards is
imperative, and the burden upon the prosecution is higher than in
ordinary criminal cases. In the present case, the record indicates that
the secret information was received and acted upon; A raiding party
was constituted; the accused persons were intercepted and search was
conducted; seizure memo was prepared; Samples were drawn and sent
for chemical examination. Although certain minor discrepancies have
been pointed out by the defence, this Court finds that such
inconsistencies are not of such magnitude as to vitiate the entire
prosecution case.
19. The appellant has raised the issue of non-compliance of Section
50 of the NDPS Act. In this regard, reliance has been placed on State
of Punjab v. Baldev Singh, (1999) 6 SCC 172, wherein it has been
held that compliance of Section 50 is mandatory in case of personal
search. Upon careful scrutiny of the record, it emerges that the recovery
in the present case was effected primarily from a bag carried by the
accused, and not from the personal search of the body of the appellant.
It is well-settled that Section 50 applies strictly to personal search and
not to search of bags or vehicles. Thus, the contention regarding
violation of Section 50 does not merit acceptance in the facts of the
present case.
20. The appellant has contended that the investigation is vitiated as
the same officer acted as informant and investigating officer. Reliance
has been placed upon Mohan Lal v. State of Punjab (supra).
It is true that the Supreme Court has expressed concern
regarding such practice. However, subsequent judicial pronouncements
have clarified that the effect of such irregularity has to be examined in
the facts of each case, and unless serious prejudice is demonstrated,
the trial is not vitiated ipso facto.
21. In the present case, counsel the appellant has failed to
demonstrate any actual prejudice caused to him on account of such
alleged irregularity. The evidence on record does not indicate any mala
fide or bias in investigation.
22. It is the contention of the appellant that no independent witnesses
have supported the prosecution case. In this context, the law is well
settled in State (Govt. of NCT of Delhi) v. Sunil, wherein it has been
held that evidence of official witnesses cannot be discarded merely on
the ground of their official status, if their testimony is otherwise credible
and trustworthy. In the present case, the testimonies of the prosecution
witnesses are consistent and corroborative; the seizure proceedings
have been duly proved;the FSL report confirms the nature of
contraband. The prosecution has established that the contraband was
recovered from the possession of the accused persons who were
travelling together on the vehicle. Once possession is established, the
statutory presumption under Sections 35 and 54 of the NDPS Act
comes into play. The appellant has not offered any plausible
explanation to rebut the said presumption.
23. Accordingly, this Court is satisfied that the prosecution has been
able to establish conscious possession of the contraband by the
appellant.
24. In view of the aforesaid analysis, this Court finds that the
prosecution has proved its case beyond reasonable doubt. The learned
trial Court has rightly appreciated the evidence. The conviction of the
appellant under Section 21(A) of the NDPS Act does not suffer from any
illegality or perversity. Accordingly, the conviction of the appellant is
affirmed.
25. The next question that arises for consideration is with regard to
the quantum of sentence.
It is not in dispute that the appellant has already undergone about
two months and six days of incarceration; the incident is of the year
2013, and the appellant has faced prolonged trial and appeal; the
quantity involved is not commercial;there is no material on record to
indicate previous criminal antecedents.
26. The Supreme Court in Rafiq Qureshi v. Narcotic Control
Bureau has held that in appropriate cases, considering the facts and
circumstances, the sentence can be reduced to the period already
undergone. The principle of proportionality in sentencing requires that
punishment must be commensurate with the gravity of the offence as
well as the mitigating circumstances.
27. Considering the totality of facts and circumstances of the case,
this Court is of the considered opinion that the ends of justice would be
adequately met if the substantive sentence of imprisonment awarded to
the appellant is reduced to the period already undergone, while
maintaining the fine amount.
28. Accordingly, the appeal is allowed. The conviction of the appella t
is affirmed. The sentence is modified and reduced to the period already
undergone. However, the fine amount remains intact.
Sd/-
(Arvind Kumar Verma)
Judge
SUGUNA Date:
DUBEY 2026.04.01
12:52:33
+0530
