[email protected] vs The State Of Madhya Pradesh
2021 Latest Caselaw 5671 MP

                              - : 1 :-




 HIGH COURT OF MADHYA PRADESH: BENCH AT
                            INDORE
         D.B.:Hon'ble Shri Justice Vivek Rusia
       Hon'ble Shri Justice Shailendra Shukla, JJ.

                 Criminal Appeal No.1409/2016
    Pappuram @ Bhagwanaram S/o
    Hanumanaram, aged about 40 years, Appellant
    Occupation- Labour, R/o Chainpura
    Ki Dhaani, P.S. Bhjasar, District
    Jodhpur (Raj.)

                                V/s
    State of Madhya Pradesh through
    Police-Station-  Neemuch  Cant., Respondent
    District Neemuch
    Shri Abhay Saraswat, learned counsel for the appellant.
    Shri Amit Singh Sisodia, learned counsel for the respondent.




                 Criminal Appeal No.1462/2016
    Mukesh S/o Mangilal Gurjar, aged
    about    30    years,    Occupation- Appellant
    Agriculturist, R/o Village- Denthal,
    P.S. Kukdeshwar, District Neemuch
    (M.P.)

                                V/s
    State of Madhya Pradesh through
    Police-Station-  Neemuch  Cant., Respondent
    District Neemuch
    Shri Abhay Saraswat, learned counsel for the appellant.
    Shri Amit Singh Sisodia, learned counsel for the respondent.

                           JUDGMENT

(Delivered on 20th September 2021) PER VIVEK RUSIA, J:-

Since both the aforesaid criminal appeals arise out of common judgment, therefore, these are being decided by a

- : 2 :-

common judgment.

These appeals are filed under section 374 of the Code of Criminal Procedure (in short, be called as "Cr.P.C.") against the judgment dated 03.10.2016 passed by the learned Special Judge, NDPS Act, Neemuch, in Special Case No.25/2011, convicting the appellants for the charge under 8 r/w 15(c) of the Narcotic Drugs and Psychotropic Substance Act (hereinafter referred to as "NDPS Act") and sentenced to undergo 12 years rigorous imprisonment along with fine of Rs.1,50,000/- each and in default to suffer 1 and half years rigorous imprisonment in addition.

(2). The case of the prosecution, in brief, is as follows:-

On 28.06.2011, D.S. Chouhan ASI, Police Station

-Neemuch Cant. received information from the informant that Pappuram @ @ Bhagwanaram (accused), Mukesh Gurjar (accused) and Madan Nagada are going from Manasa to Rajasthan via Javasa crossing from a truck bearing registration No. RJ-19-GA-9958 with a large quantity of "poppy straw" loaded in it. The aforesaid information was recorded in the Rojnamcha. Panch and after collecting Panch witnesses, and police force reached to the Village Savan and put barricades near Dak bungalow. After waiting 20-25 minutes, a truck of the aforesaid number was found coming. The truck was stopped but one person jumped and fled away. Two persons were found sitting in the cabin of the truck. The driver of the truck has disclosed his name Pappuram @ Bhagawanaram resident of Chainpura Ki Dhaani, P.S. Bhjasar, District Jodhpur (Raj.) and another person sitting in the cabin disclosed his name Mukesh S/o Mangilal Gurjar. They disclosed that Madanlal was also with them but fled away from the truck. Under the provisions of NDPS Act, the search was conducted, and 105 bags of poppy straw were found in

- : 3 :-

the truck kept along with bags of onion. The total weight of poppy straw was found 22 quintals 72 kg. Two samples of 500-500 were taken from each bag and sealed as articles 1-A to 105A and 1-B to 105-B. After completing the necessary investigation as per law, these two appellants were arrested and the charge-sheet was filed under Section 8 r/2 29 and 15(C) of N.D.P.S. Act against appellants, Bhagwandas, Baburam and Kanha @ Kanhaiyalal. Against Pappuram @ Bhagwanaram another crime No.349/2011 under NDPS was found registered.

(3). Learned Special Judge framed the charges against the appellants, they denied the charges and pleaded for the trial.

(4). Prosecution has examined as many as 10 witnesses and got exhibited 76 documents. In defence, the appellants did not examine any witnesses but got exhibited 9 documents as Ex. D/1 to D/9.

(5). After evaluating the evidence that came on record, vide judgment dated 03.10.2016, appellants have been convicted and sentenced as stated above. Hence, this appeal before this Court.

(6). At the very outset, learned counsel appearing for the appellants submits that appellants are not challenging their conviction under section 8 r/w 15(c) of N.D.P.S. Act but praying for reduction of the sentence from 12 years to the period already undergone. Learned counsel further submits that the appellants are in jail since the date of arrest and as of today they have completed incarceration 10 years and 5 months out of 12 years R.I. In support of his contention, he has placed reliance on the judgment passed by the Apex Court in the case of M.Sampat Vs.State of Chhattisgarh (2021) 6 SCC 201 in which Apex Court has reduced the sentence in case of recovery of commercial quantity of Ganja from 20 years to 15 years and fine from Rs.2,00,000/- to Rs.

- : 4 :-

1,00,000/-. He has also relied on the judgment passed by the Division Bench of this Court in the case of Ismile & ANR. Vs.Union of India (Criminal Appeal No.188/2012 decided on 29.06.2021) whereby in case of recovery of 32.100 kgs heroin, the sentence of has been reduced from 15 years to 10 years. Hence, he prays that the jail sentence of the appellants be also reduced from 12 years to the period of sentence already undergone.

(7). Per contra, Shri Sisodiya learned Government Advocate appearing for the respondent/State submits that the commercial quantity of poppy straw is 50 kg or more. From the possession of appellant large quantity i.e. 22 quintals 72 kg. was recovered. The minimum sentence is 10 years and the maximum sentence is 20 years, therefore, looking at the quantity of contraband recovered from the possession of the appellant, the sentence of 12 years has rightly been awarded to them hence there is no scope of reduction sentences awarded to the appellants. In support of his contention, the learned Government Advocate has placed reliance on the latest judgment passed by Apex Court in the case of Gurdev Singh Vs. State of Punjab 2021 SCC Online SC 285 in which the Apex Court has considered the scope of Section 32B of the N.D.P.S. Act and declined to reduce the sentence from 15 years to the period of sentences already undergone.

We have heard learned counsel for the parties and perused the record of the trial court.

(8). Since the appellants are not assailing their conviction under section 8 r/w 15(c) of the Narcotic Drugs and Psychotropic Substance Act by the Special Judge, hence judgment dated 03.10.2016 to that effect is hereby affirmed. So far as reduction of sentence of 12 years RI is concerned, the appellant/ Pappuram @

- : 5 :-

Bhagwanaram is not first time offender, he was the driver of the truck in which 22 quintals 72 kg. of poppy straw was found hence he cannot plead that he was not aware that the large quantity was loaded in the aforesaid truck. So far as appellant Mukesh is concerned, Shri Saraswat submits that he took a lift in the truck, and he was not aware that a large quantity of contraband was loaded in the truck. He has no criminal past, and he is a patient of aids, thus his sentence may be reduced from 12 years to the period has already undergone.

(9). In the case of poppy straw, the commercial quantity starts from 50 kg and the joint possession of the appellants 22 quintals 72 kg. of poppy straw was recovered. The minimum sentence is 10 years and the maximum sentence up to 20 years, therefore, appellants are liable to be sentenced looking to the quantity recovered from their possession. In the cases of the NDPS the quantity of contrabands plays a significant role while awarding the sentence by the courts. The NDPS Act itself specify the sentences as per the number of contrabands involved in the crime. In the case of Gurudev Singh (Supra), the Apex Court has held that on a fair reading of Section 32B of the Act, it cannot be said that while imposing a punishment higher than the minimum term of imprisonment or amount of fine, the Court has to consider only those factors which are mentioned/enumerated in section 32B of the Act. Section 32B says that where a minimum term of imprisonment or amount of fine is prescribed for any offence committed under this Act, the court may, in addition to such factors as it may deem fit, take into account the factors mentioned in sub-clause (a) to (f) for imposing a punishment higher than the minimum term of imprisonment or amount of fine. In this case, none of the factors mentioned from clauses (a) to (f) is there but

- : 6 :-

as per the judgment of Gurudev Singh (Supra), these are additional factors to be considered for imposing the higher than the minimum punishment. The quantity seized from the possession of the appellants is huge, much more than the commercial quantity of 50 kg, hence the learned special judge has rightly awarded a sentence to undergo 12 years RI with a fine.

(10). In view of the recent judgment passed by the Apex Court in the case of the Gurudev Singh (Supra), no reduction of the sentence, as well as fine, is made out. There is no substance in these appeals and the same deserves to be dismissed and are accordingly dismissed.

The registry is directed to send back the Trial Court record along with a copy of this judgment.

Certified copy as per Rules.

               ( VIVEK RUSIA )                        ( SHAILENDRA SHUKLA )
                   JUDGE                                     JUDGE



               praveen/-



Digitally signed by PRAVEEN
NAYAK
Date: 2021.09.22 17:03:55
+05'30'