Munib Kumar vs State
2013 Latest Caselaw 2804 Del

$-25
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         DECIDED ON : 5th JULY, 2013

+                            CRL.A. 250/2011
       MUNIB KUMAR                                   ..... Appellant
                             Through :   Mr. Shaiesh Kumar, Advocate.

                             versus
       STATE                                       ..... Respondent

Through : Mr.M.N.Dudeja, APP.

CORAM:

HON'BLE MR. JUSTICE S.P.GARG

S.P.Garg, J. (Open Court)

1. The appellant- Munib Kumar impugns judgment dated

27.04.2010 of learned Additional Sessions Judge in Sessions Case No.

16/2008 arising out of FIR No. 656/2007 PS Hazrat Nizammudin by

which he and Sunil Kumar were convicted under Section 20 (b)(ii)(B) of

NDPS Act. By an order dated 27.04.2010, the appellant was sentenced to

undergo RI for seven years with fine ` 70,000/- and in default of payment

to undergo SI for nine months.

2. Allegations against the appellant were that on the night

intervening 23/24.11.2007 at Mathura Road, Nizamuddin near petrol

pump, he and his associate Sunil Kumar were coming from the side of

Railway Road, Nizammuddin on foot and were carrying bags on their

shoulders and suit cases in their hands. On checking the bags and suit

cases, it were found containing 'ganja'. The total recovery effected from

the appellant was 8 kg and 10 kg from both the bags. After completion of

investigation, they were charged. The prosecution examined nine

witnesses. In their 313 statements, the accused persons pleaded false

implication. On appreciating the evidence and after considering the rival

contentions of the parties, the Trial Court, by the impugned judgment,

held both the present appellant- Munib Kumar and Sunil Kumar guilty for

the offence mentioned previously. Being aggrieved, the appellant- Munib

Kumar has preferred the instant appeal.

3. During the course of arguments, learned counsel for the

appellant on instructions from Munib Kumar stated that the appellant has

opted not to challenge the conviction under Section 20 (b)(ii)(B) of NDPS

Act. He however, prayed for modification of the order on sentence as the

appellant has already undergone more than five years sentence.

4. I have considered the submissions of the parties and have

examined the Trial Court record. Since the appellant has not opted to

challenge the findings of the Trial Court on conviction under Section 20

(b)(ii)(B) of NDPS Act, the order of conviction of the Trial Court stands

affirmed.

5. Regarding modification of order on sentence, it reveals that

the appellant was sentenced to undergo RI for seven years with fine `

70,000/-. Nominal roll dated 17.05.2012 reveals that he has already

undergone four years, five months and twenty four days incarceration as

on 17.05.2012. He is not a previous convict and is not involved in any

other criminal case. His overall jail conduct is satisfactory. It is stated that

he is aged about 23 years and has old parents to take care of them.

Considering all the mitigating circumstances, the substantive sentence is

modified and the appellant is sentenced to undergo RI for six years with

fine ` 50,000/- and failing to pay the fine to undergo SI for one month. He

shall be entitled to benefit under Section 428 Cr.P.C.

6. The appeal is disposed of in the above terms. Trial Court

record be sent back forthwith.

(S.P.GARG) JUDGE

JULY 05, 2013 tr