Akhil Dass vs State
2013 Latest Caselaw 3240 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   DECIDED ON : 26th July, 2013

+                   CRL.A. 847/2013 & Crl.M.B,No.1372/2013
       AKHIL DASS
                                                             ..... Appellant
                          Through : Mr.J.S.Kushwaha, Advocate.
                          versus
       STATE
                                                          ..... Respondent
                          Through : Mr.M.N.Dudeja, APP for the State.
CORAM:
MR. JUSTICE S.P.GARG

S.P.GARG, J. (ORAL)

1. The appellant-Akhil Dass impugns the judgment dated

11.06.2012 in Sessions Case No.9/2010 arising out of FIR No.73/2010

registered at Police Station Narcotics Cell by which he, Chijoke Smith

Okpe and Marina were convicted under Section 25A NDPS Act r/w

Section 29 NDPS Act. By an order dated 03.07.2012 he was sentenced to

undergo Rigorous Imprisonment for four years with fine of `20,000/-

2. Allegations against the appellant were that he and Chijoke

Smith Okpe entered into a criminal conspiracy for supply of controlled

substance (ephedrine) and consequent to that appellant and Chijoke Smith

Okpe were found exchanging the same with conscious possession of

ephedrine. On 25.05.2010 a secret information was received by SI

Satyawan of Narcotics Cell that one Nigerian national namely Chijoke

Smith Okpe (A-1), resident of Madhya Pradesh was involved with one

Asif in bringing the ephedrine from Madhya Pradesh and further used to

send the same to South Africa through Delhi, would be coming with his

girl friend, with heavy quantity of ephedrine to supply at the gate of

St.Stephen's hospital. The raiding party was organized. At 03.35 P.M.,

Chijoke Smith Okpe was seen coming with a blue bag on his right

shoulder and one black bag on his left hand and was accompanied with a

North Eastern girl. Both stood near the main gate and after about 2-3

minutes appellant-Akhil Dass came from Tis Hazari side and started

having conversation with them. Chojoke Smith Okpe handed over blue

bag to appellant (Akhil Dass) and they started moving back. They were

apprehended. From the search of black colour bag carried by Chojoke

Smith Okpe it was found containing shiny powder weighing 6 kg. The

blue bag carried out by Akhil Dass was found containing 3.5 kg

ephedrine. Necessary proceedings were conducted. After completion of

investigation they all were sent for trial for committing offences

punishable under Section 25A read with Section 29 NDPS Act. The

prosecution examined 13 witnesses in all to bring home the guilt of the

appellant. In his 313 statement, the appellant pleaded false implication.

On appreciating the evidence and considering the rival contentions of the

parties the Trial Court by the impugned judgment convicted the appellant-

Akhil Dass for the offence previously described. Being aggrieved, the

appellant has preferred the appeal.

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

appellant, on instructions, stated that the appellant has opted not the

challenge his conviction under Section 25A NDPS Act read with Section

29 NDPS Act. The counsel, however, prayed to take lenient view as the

appellant has already undergone the substantial sentence awarded to him.

4. I have heard the learned Additional Public Prosecutor and the

learned counsel for the appellant and have examined the record. Since the

appellant has opted not to challenge his conviction recorded by the Trial

Court, his conviction is confirmed.

5. Regarding sentence, the appellant was sentenced to undergo

Rigours Imprisonment for four years with fine of `20,000/- vide order

dated 03.07.2012. Nominal roll dated 25.07.2013 reveals that he has

already undergone three years, one month and twenty eight days

incarceration as on 25.07.013. He is not a previous convict and is not

involved in any other criminal case. He is 31 years of age and is a sole

earning member of his family consisting of a wife and three children.

Vide judgment dated 23.05.2013, sentence of the Co-convicts Chijoke

Smith Okpe and Marina was modified and they were ordered to be

released for the period already undergone by them.

6. Taking into consideration the above facts, the order on

sentence is modified and the appellant is ordered to be released for the

period already undergone by him in this case which is more than three

years. Regarding fine of `20,000/- imposed by the Trial Court, the

appellant shall pay the same and in default of payment of the same, he

shall undergo SI for one month.

7.            The   appeal   is   disposed   of   in   the    above   terms.

Crl.M.B,No.1372/2013 also stands disposed of.



                                                             (S.P.GARG)
                                                               JUDGE
JULY 26, 2013
sa