Madhya Pradesh High Court
Unkarlal @ Onkarlal vs The State Of Madhya Pradesh on 29 June, 2022
Author: Vivek Rusia
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 29th OF JUNE, 2022
CRIMINAL APPEAL No. 7941 of 2018
Between:-
UNKARLAL @ ONKARLAL S/O
DAULATRAM DHAKAD, AGED ABOUT 58
YEARS, OCCUPATION: AGRICULTURIST
VILLAGE MAALKHEDA P.S. NEEMUCH
CITY DISTRICT NEEMUCH (MADHYA
PRADESH)
.....APPELLANT
(SHRI ABHAY SARASWAT, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER THROUGH P.S.
BAGHANA DISTT.-NEEMUCH (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI BHASHKAR AGRAWAL, GOVT.ADVOCATE)
This appeal coming on for order this day, JUSTICE VIVEK RUSIA
passed the following:
JUDGMENT
Appellant has preferred this appeal under Section 374 of the Code
of Criminal Procedure, 1973 (in short "Cr.P.C.") against the judgment
of conviction and sentence dated 07.09.2018, passed by Special Judge,
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NDPS, Act, Neemuch in Special S.T Case No.16/2012; whereby, he has
been convicted under Section 8/18(b) of the of Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as ''NDPS
Act'') and sentenced to undergo 12 years R. I with a fine of
Rs.1,50,000/- in default of fine 1 year 6 months Addl. R.I.
Although this appeal is listed for hearing on I.A.No.4244/2021
which is the first application seeking suspension of sentence filed on
behalf of the sole appellant but learned counsel for the appellant instead
of challenging the judgment on merit has confined his arguments only
to the extent of reduction of the period of jail sentence and fine amount.
2. As per the prosecution story, on 23.01.2012, Mohammad Shakir
Khan, Assistant Sub Inspector of Police Station Baghana received
discrete information that the appellant carrying opium was going
towards Rajasthan from his motorcycle bearing registration No.M.P.-
44-BA-6286. He was wearing black colour trousers and a pink shirt.
The police erected the barricades on the basis of given information. The
appellant was found coming on the motorcycle with the above
description. The police team members apprehended the Motorbike,
introduced themselves to the appellant and thereafter searched him after
disclosing his statutory right to him. He agreed to be searched himself
by the Investigation Officer and from his possession a plastic bag was
found. Opening the plastic bag 10 Kg of Opium was found. Statement
of the accused and other witnesses were recorded. After completing the
necessary investigation, a charge sheet was filed against the appellant
Unkarlal @ Onkarlal.
3. In defence, the appellant took a plea that for 7 to 8 years he had
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been involved in the cultivation of opium on a lease granted by the
department. Charges were framed against the appellant, which he
denied and pleaded for trial. Since he denied the charges, the
prosecution was called upon to establish the charges against him. The
prosecution has examined as many as 11 witnesses from PW-1 to PW-
11 and exhibited as many as 66 documents. In defence, the appellant
has examined only Dr H.O.Gupta (DW-1).
4. After evaluating the evidence that came on record, the learned
Special Judge has convicted the present appellant under Section 8/18(b)
of the NDPS Act and sentenced him to undergo 12 years R. I with a fine
of Rs.1,50,000/- in default of fine 1 year 6 months Addl. R.I vide
judgment dated 07.09.2018, passed by Special Judge, NDPS, Act,
Neemuch in Special S.T Case No.16/2012.
5. Since the appellant is not assailing the findings recorded against
him on merit, therefore, we are not required to re-appreciate again
hence same are being affirmed.
6. Learned counsel for the appellant submits that the appellant is the
first offender. He is in jail since last more than 10 years. There is no
complaint about his conduct in jail. By way of reformatory approach, he
may kindly be released as he has completed a minimum sentence of 10
years. He is confining this appeal only to extent of a reduction of 12
years sentence to the sentence already undergone as well as a reduction
of fine amount and default sentence.
7. Learned Government Advocate opposes the prayer but does not
dispute that the appellant is in jail since the date of arrest and completed
more than 10 years and he is the first offender but looking at the
commercial quantity of contraband recovered from his possession he
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has rightly been awarded 12 years of rigorous imprisonment with fine
mount.
8. Learned counsel for the appellant in support of his contention, has
placed reliance on various judgments passed by the Apex Court in the
case of Jeet Ram Vs. The Narcotics Control Bureau Chandigarh
reported in 2020 Cr. L.R (SC) 966 as well as by this Court in the cases
of Karnailsingh Vs. State of M.P. (CRA.No.414/2010), Andaram Vs.
State of M.P. (CRA.No.425/2016), Suresh Chandra Vs. State of M.P
(CRA.No.7745/2018), Rakesh Vs. State of M.P. (CRA.No.1776/2016)
and in Hokamchand Meena Vs. State of M.P. (CRA.No.210/2007) in
which in similar facts and circumstances, not only the sentence has been
reduced to ten years but the fine amount has also been reduced.
9. Having gone through the material available on record and the
evidence of the witnesses, it can be established that the involvement of
the accused/appellant in the crime in question has been proved beyond a
reasonable doubt. This Court does not see any illegality in the findings
recorded by the court below as regards the conviction of the appellant
under Section 8/18(b) of the Narcotic Drugs and Psychotropic
Substances Act, 1985.
10. So far as the sentence is concerned, we are of the considered
opinion that the appellant is the first offender and he is in jail since the
date of arrest which is more than ten years also looking at the quantity
of contraband recovered from his possession, we hereby, reduce the
sentence from 12 years to 10 years. So far the fine amount is concerned,
nothing has been filed to establish that he or his family members are not
in a financial condition to deposit the aforesaid amount. Therefore, we
are not inclined to reduce the fine amount. However, if the fine amount
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is deposited, the default sentence is hereby, reduced from one and half
years to six months.
11. Given the above, the appeal is partly allowed.
12. Let a copy of this judgment be sent to the concerned trial court for
information and compliance.
(VIVEK RUSIA ) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
Digitally signed by
das REENA PARTHO
SARKAR
Date: 2022.07.05
11:14:14 +05'30'
