Madhya Pradesh High Court
Vasid Ali vs The State Of Madhya Pradesh on 5 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
ON THE 5 th OF FEBRUARY, 2024
CRIMINAL APPEAL No. 15342 of 2023
BETWEEN:-
VASID ALI S/O MOHAMMED ALI, AGED ABOUT 47
YEARS, VIRAT NAGAR, GALI NO. 3, AGAR ROAD, DIST.
UJJAIN (MADHYA PRADESH)
.....APPELLANT
(SHRI JITENDRA SHEJWAR, LEARNED COUNSEL FOR THE PETITIONER
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH POLICE STATION CHIMANGANJ
MANDI UJJAIN (MADHYA PRADESH)
.....RESPONDENTS
(SHRI SACHIN JAISWAL APPEARING ON BEHALF OF ADVOCATE
GENERAL.
Th is appeal coming on for hearing this day, t h e 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 28.11.2023, passed by learned
Special Judge, NDPS Act, District-Ujjain in Special Case (NDPS) No.5/2018,
whereby the appellant has been convicted for the offence punishable under
Section 8/18(B) of NDPS Act and sentenced to undergo 02 years RI with fine
of Rs.10,000/- and default stipulation.
2 . A s per the case of prosecution on 18.09.2017, on a discrete
information, the police has recovered 04 KG and 80Grmas of poppy straw
from possession of the appellant. 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 8/18(b) of the NDPS
Act, 1985.
3. 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 also submitted
that the appellant has suffered more than 04 months custody period. 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, therefore, he
prayed that the appeal be partly allowed and the sentence awarded to the
appellant be reduced to the period already undergone.
4. 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/-.
5. 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.
6. I have considered rival contentions of the parties and have perused the
record.
7 . 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.
8 . 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 04 months of his jail incarceration, he
may be released only with the undergone sentence by enhancing the fine
amount.
9. 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
10. 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."
11. 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.
12. In view of the aforesaid, the point of sentence is considered. It seems
that the appellant has suffered more than 04 months of his incarceration out of
02 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.
13. In view of the aforesaid legal proposition regarding non-commercial
quantity which is 04KG and 800grams of poppy straw, 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.
14. Accordingly, this Criminal Appeal is partly allowed and the sentence
under Section 8/18(b) of the NDPS Act awarded to the appellant is hereby
reduced to the period already undergone by enhancing the fine amount from
Rs.10000/- to Rs.50,000/-. In case of failure to deposit the fine amount, the
appellant shall further undergo for 06 months simple imprisonment.
15. The appellant is in jail. After depositing the aforesaid fine amount, he
shall be released from the jail. The bail bond of the appellant shall be discharged
after depositing of the enhanced fine amount. Fine amount, if already deposited
shall be adjusted.
16. The judgment of learned trial Court regarding disposal of the seized
property stands affirmed.
17. A copy of this order be sent to the concerned trial Court for
necessary compliance.
Pending application, if any stands closed.
Certified copy as per rules.
(PREM NARAYAN SINGH)
JUDGE
amit
