Madhya Pradesh High Court
Mukesh vs The State Of Madhya Pradesh on 7 May, 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)
HEARD & RESERVED ON THE 23rd OF APRIL, 2022
FINAL JUDGMENT PASSED ON THE 7th OF MAY, 2022
CRIMINAL APPEAL No. 7910 of 2019
Between:-
MUKESH S/O SHRI PRAKASH CHAND ,
AGED ABOUT 51 YEARS, OCCUPATION:
AGRICULTURE, R/O GRAM NARSINGHPUR,
P. S. KOTWALI CITY, MANDSAUR (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI YOGESH PUROHIT, ADVOCATE )
AND
THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER THROUGH PS
NEEMUCH CANT, NEEMUCH (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI BHASKAR AGRAWAL, GOVERNMENT ADVOCATE )
This appeal coming on for order this day, JUSTICE VIVEK RUSIA
passed the following:
JUDGMENT
The appellant has filed an application seeking out of turn final
hearing on the ground that he has completed more than 10 years of jail
sentence out of 12 years.
With the consent of the parties, the criminal appeal is heard finally.
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 02.07.2019, passed by Special Judge, NDPS,
Neemuch in Special (NDPS) Case No.09/2012 whereby he has been
convicted under Section 8/18(b) of Narcotic Drugs and Psychotropic
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Substances Act, 1985 (hereinafter referred to as ''NDPS Act'').
[2] The case of the prosecution, in brief, is as follows: -
(a) As per the prosecution story, Assistant Sub Inspector of Police
Neemuch Cantt received discrete information that the appellant is going to
transport opium from his motorcycle bearing registration No.RJ06-3M-5097
towards Bhilwara. After entering the secret information in a daily diary,
Panch witnesses were called and the team of police reached the location.
This appellant was seen coming on motorcycle, he was stopped and asked to
disclose his name. The police team members introduced themselves and
thereafter searched him after disclosing his statutory right . he agreed to be
searched himself by the Investigation Officer. From his conscious
possession, 12 kg of opium was found. After completing the necessary
investigation, a charge-sheet was filed against the appellant and co-accused
Rewaram @ Revashankar.
[3] Charges were framed against all the accused, which they denied and
pleaded for trial. The prosecution examined as many as 12 witnesses as PW-
1 to PW-12 and exhibited various documents.
[4] After evaluating the evidence that came on record, the learned
Special Judge has acquitted co-accused Revaram @ Revashankar from all
the charges, who were said to have provided the opium to present appellant
for transportation and convicted the appellant and sentenced him as stated
above. Hence, this appeal before this Court against the impugned judgment
of conviction and sentence.
[5] Learned counsel for the appellant submits that although the appellant
has a good prima facie case, and he hopes to succeed in it, the trial itself
took almost 8-9 years to its conclusion. As of today, the appellant has
completed more than 10 years of his jail sentence. He is the first offender
and there was no proper compliance with Section 50 of NDPS Act. There is
no investigation in respect of ownership of the motorcycle. These grounds
are liable to be considered at the time of the final hearing of the appeal but
this appeal of 2019 would take years together to come up for final hearing
by that time he will complete the main sentence as well as the default
sentence, therefore, he is confining this appeal only to extent of reduction of
12 years sentence to the sentence already undergone as well as reduction of
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fine amount and default sentence.
[6] The 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 has rightly been awarded 12
years of rigorous imprisonment with fine mount.
[7] Learned counsel for the appellant has placed reliance on the Apex
Court decision in the case of Shantilal vs. State of M.P. reported as 2008
SCC 1 (Cri.) 37 of the judgment reads as under:-
37. For the reasons aforesaid, the appeal is partly allowed,
conviction recorded and sentence imposed on the appellant
to undergo rigorous imprisonment for ten years is confirmed.
An order of payment of fine of rupees one lakh is also
upheld. But an order that in default of payment of fine, the
appellant shall undergo rigorous imprisonment for three
years is reduced to rigorous imprisonment for six months. To
that extent, the appeal filed by the appellant is allowed. If the
appellant has undergone substantive sentence of rigorous
imprisonment for ten years as also rigorous imprisonment for
six months as modified by us in default of payment of fine,
the appellant shall be set at liberty forthwith unless he is
required in any other offence. If the appellant has not
completed the said period, he will be released after the
period indicated hereinabove is over. The appeal is
accordingly disposed of.
[8] There is nothing on record that the appellant is having any criminal
past. Admittedly, the quantity of contraband is more than the commercial
quantity and if this appeal is not decided in the next couple of years, then,
the appellant would undergo the entire sentence awarded to him. He is the
first offender. One opportunity for reformations may be given. He has
undergone a minimum sentence of 10 years.
[9] The act of the appellant falls within the mischief of Section 8/18(b) of
Narcotic Drugs and Psychotropic Substances Act, 1985 for which the trial
court has rightly convicted him and his conviction is hereby affirmed.
[10] 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
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Section 8/18(b) of the Narcotic Drugs and Psychotropic Substances Act,
1985.
[11] As regards sentence, keeping in view the fact that the incident had
taken place in the year 2011, the appellant had already remained in jail for
more than 10 years months, we are of the view that ends of justice would be
served, if the sentence imposed on him is reduced from 12 years to 10 years.
[12] In view of the above, the appeal is partly allowed with the following.
[i] The conviction of appellant is reduced 12 years to 10 years
R.I..
[ii] The fine amount is reduced from Rs.1,50,000/- to
Rs.1,00,000/-. In default of payment of fine amount, the appellant shall
further suffer 3 months S.I.
Let copy of this judgment be sent to the concerned trial court for
information and compliance.
C.C. as per Rules.
( VIVEK RUSIA ) ( AMAR NATH (KESHARWANI))
JUDGE JUDGE
praveen/-
Digitally signed by
PRAVEEN NAYAK
Date: 2022.05.07 18:12:59
+05'30'
