Madhya Pradesh High Court
Zakir Khan vs The State Of Madhya Pradesh on 1 February, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL APPEAL No. 6850 of 2023
BETWEEN:-
ZAKIR KHAN S/O SHRI ABID KHAN MEWATI, AGED
ABOUT 27 YEARS, OCCUPATION: LABOR R/O BALAI
MOHALLA BADAWADA TEHSIL JAORA DISTT. RATLAM
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI MOHD. SHARIB KAHAN, ADVOCATE )
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH POLICE STATION BADAWADA
DISTT. RATLAM (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SURENDRA GUPTA, GA FOR STATE )
Heard on: 25.01.2024
Reserved On:01.02.2024
T h i s criminal appeal having been heard and reserved for
orders, coming on for pronouncement this day, the Court passed the
following:
JUDGMENT
1. This criminal appeal is preferred under section 374 of Cr.P.C. by the
appellant being aggrieved by the judgment dated 06.03.2023, passed by learned
Special Judge, NDPS Act, Jaora District-Ratlam in Special Case (NDPS)
No.23/2017, whereby the appellant has been convicted for the offence
punishable under Section 15(b) of NDPS Act and sentenced to undergo 08
years RI with fine of Rs.80,000/- and default stipulation.
2 . A s per the case of prosecution on 16.10.2017, Police Station
Badawada received a secret information that two unknown persons were having
illegal poppy straw in their possession and are standing near a culvert between
the villages of Thikariya and Veerpura. Action upon the said information, the
police parity reached upon the spot after following the due procedure, seeing
the police party, the appellants tried to fled away from the spot, but the police
team has apprehended them. On being search, 106 KG of Poppy straw were
recovered containing in the six sacks. Thereafter, following the due procedure
of law, FIR was registered. Thereafter, investigation was conducted and charge
sheet was filed after which the charges were framed against the present appellant
but he denied the same and expressed his willingness to face the trial, the
present appellant was found guilty for the offences u/s 15(b) of the NDPS Act,
1985.
3. On the one hand, learned counsel for the appellant submits that the
judgement of the learned trial Court is bad in law and the learned trial Court has
failed to consider that the prosecution has not complied with the provisions of
Section 42, 50, 52, 55 and 57 of the NDPS Act and erred in convicting the
appellant. The prosecution is unable to prove that the contraband was seized
from the appellant and co-accused was of commercial quantity because the
investigating officer has mixed all the six sacks and thereafter, weighting the
same which is against the provisions of law.
4. It is also submitted that the learned trial Court itself has observed that
the contraband recovered from possession of the appellant and co-accused was
of non-commercial of quantity and even then convicted the appellant for the
offence possessing commercial quantity which is grave error of law. The
prosecution witnesses PW-1 Mukesh, PW-2 Prakash, PW-7 Ishwar and PW8
Sambhu Lal and PW-10 Mukesh Mishra have turned hostile and have not
supported the case of the prosecution. There are omissions and contradictions
in the statements of the witnesses, but the learned trial Court has erred in
convicting the appellant.
5. However, on the other hand, learned counsel for the appellant has
submitted that the appellant has preferred this criminal appeal on several
grounds but during the course of arguments, learned counsel for the appellant
did not press this appeal on merits and not assail the finding part of judgment.
He confines his arguments on the point of sentence. Counsel for the appellant
assures that the appellant will not involve in such criminal activities in future. He
further submitted that he is having regard to all circumstances which resulted in
appellant's conviction. Further keeping in view the fact that the appellant was
facing the trial before the concerned Court for almost 07 years, the appellant
has suffered more than 15 months custody period and as the learned trial Court
itself has admitted that the quantity so recovered can be non-commercial
quantity, the sentence of the appellant be reduced to the period already
undergone or as the Court may deems fit.
6. In support of his contention, counsel for the appellant has placed
reliance over the judgment passed in CRA No.7063/2022 (Mukesh Kumar
Jatav Vs. The State of Madhya Pradesh) decided on 12.05.2023 wherein
co-ordinate Bench of this Court has reduced and undergone the sentence of the
appellant in only 09 months out of 10 years. Similarly, in this Bench in the case
of Tulsiram vs. State of M.P. passed in CRA No.12105/2023 decided on
01.12.2023 wherein this Bench has passed the sentence of six months out of
four years of imprisonment by enhancing the fine from Rs.30000/- to
Rs.100000/-.
7. Learned Govt. Advocate has opposed the prayer. He supported the
judgment and order by submitting that there is clear evidence against the
appellant, therefore, he prays for dismissal of the appeal.
8. I have considered rival contentions of the parties and have perused the
record.
9 . So for as the contentions on merits of the case raised by learned
counsel for the appellant is concerned, the learned trial Court has not committed
any error in appreciation of evidence available on record. Further, it is found
that the Court below considered the evidence available on record and correctly
found that the case of the prosecution is well supported by the witnesses and
documentary testimony. The procedure was well followed by the prosecution
and the witnesses of prosecution have profoundly supported the prosecution
case. The Court below has well considered the material available on record,
hence, no infirmity is found in the impugned order of conviction passed by the
Court below, accordingly, the same is upheld.
1 0 . In so far as the sentence is concerned, learned counsel for the
appellant has prayed only on the part of sentence and submitted that since the
appellant has already suffered more than 15 months of his jail incarceration, he
may be released only with the undergone sentence by enhancing the fine
amount.
11. In this regard, earlier also the Hon'ble Apex Court as well as this
Court has also considered the prayer and reduced the incarceration period of
the accused persons to the period already undergone in the cases where the
quantity of the contraband is found to be of non-commercial or lesser than the
commercial quantity.
12. On this aspect, the Hon'ble Apex Court in the case of R. Kumaravel
vs. Inspector of Police NIB CID (RA No.1056/2019) decided on
15.07.2019 has observed as under:-
"As per Section 20(b)(ii) (b) of minimum punishment is prescribed
for involvement of the quantity lesser than commercial quantity, by greater
than the small quantity.
Learned counsel appearing on behalf of the appellant has submitted
that the appellant has no criminal antecedents. The appellant has already
undergone imprisonment for about 206 days. Considering the facts and
circumstances of the case, the sentence of imprisonment of two years
imposed upon the appellant is reduced to one year."
13. Further, on this aspect, the case of Mangilal Vs. Central Narcotics
Bureau 2006 Law Suit (MP)111 is worth referring here wherein the Court has
partly allowed the appeal and as the case was related to 2 kg opium i.e. non-
commercial quantity, passed a conviction for 3 years RI with fine of Rs. 1000/-
instead of 5 years. Similarly, in the case of Kamal Vs. State of M.P. 2012
Law Suit (M.P. 2298 (CRA No.10/2011), Baba @ Akash Sonkar vs.
State of M.P. 2020 Law Suit MP 1645 (CRA No.426/2000), Bhagwat
Patel Vs. State of M.P. 2022 Law Suit 789 (CRA No.674/2022), Munna
@ Munnu Pandit 2022 Law Suit 789 (CRA No.2494/2022) the co-ordinate
Bench have reduced to the sentences of the accused persons respectively in
non-commercial quantities. In the case of Kamal (supra), the co-ordinate
Bench has undergone punishment in approximately two years out of five years
for non-commercial quantity, in the case of Baba @ Akash Sonkar (supra),
undergone the sentence in one year out of seven years imprisonment, in
Bhagwat Patel (supra) the Bench has reduced the sentence to the period
already undergone in 8 months and similarly in the case of Munna (supra) in
seven months.
14. In view of the aforesaid, the point of sentence is considered. It seems
that the appellant has suffered more than 15 months of his incarceration out of
08 years. That part. the appellant has suffered the ordeal of criminal case since
2017. There is no minimum sentence prescribed in this regard. On this aspect,
the law laid down by the Hon'ble Apex Court, in the case of R. Kumarawal
(supra) as well as the settled propositions of law endorsed by Co-ordinate
bench of this court, has been perused.
1 5 . I n view of the aforesaid legal proposition regarding commercial
quantity which 50KG of poppy straw and in the present case, after the mixture
of the contraband, the quantity of the contraband shall be less than the
commercial quantity as held by learned trial Court relying upon the judgment of
this Court passed in CRA No.1173/2015 [ Yunus Son of Rahmat Shah
versus State of Madhya Pradesh] dated 02.05.2022, so also considering the
fact that there is no criminal record/antecedents of the appellant, therefore, this
Court finds it expedient to partly allow this appeal.
16. Accordingly, this Criminal Appeal is partly allowed and the sentence
under Section 15(b) of the NDPS Act awarded to the appellant is hereby
modified to the extent that the appellant shall undergo for 02 years R.I. in place
of 08 years with fine of Rs.1,00,000/-. In case of failure to deposit the fine
amount, the appellant shall further undergo for three months simple
imprisonment.
17. The appellant is in jail. After completion of two years of his jail
sentence and after depositing the aforesaid fine amount, he shall be released
from the jail. Fine amount, if already deposited shall be adjusted.
18. The judgment of learned trial Court regarding disposal of the seized
property stands affirmed.
19. A copy of this order be sent to the concerned trial Court for
necessary compliance.
Certified copy as per rules.
(PREM NARAYAN SINGH)
JUDGE
AMIT
