Madhya Pradesh High Court
Akeel @ Baba vs The State Of Madhya Pradesh on 27 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. 13192 of 2023
BETWEEN:-
AKEEL @ BABA S/O CHHOTE KHAN MANSOORI, AGED
ABOUT 47 YEARS, OCCUPATION: LABOR R/O
CHUNABHATTI BARWANI (MADHYA PRADESH)
.....APPELLANT
(SHRI ASHISH GUPTA, LEARNED COUNSEL FOR THE PETITIONER ).
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH POLICE STATION BARWANI
(MADHYA PRADESH)
.....RESPONDENT
( SHRI SURENDRA GUPTA - GOVT. ADVOCATE).
Reserved on :21.02.2024
Pronounced on : 27.02.2024
This criminal appeal having been heard and reserved for judgments,
coming on for pronouncement this day, the court passed the following:
JUDGMENT
1. Heard.
2. This criminal appeal is preferred under section 374 of Cr.P.C. by the
appellant being aggrieved by the judgment dated 04.10.2023, passed by learned
Special Judge, NDPS Act, Barwani, in S.C. No.03/2021, whereby the appellant
has been convicted for the offence punishable under Section 8(c)/20(b)(ii)(b) of
NDPS Act and sentenced to undergo 4 years RI with fine of Rs.10,000/-, with
default stipulations.
3.As per prosecution case, on 14/12/2022, the concerning police has
received a secret information regarding contraband article and after that
concerning police took action on the information received and they were
reached on the spot and caught the appellant and there is recovery of 2.400 Kg.
Ganja from the Possession of appellant and police arrested the appellant.
4. 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 approximately six months custody period. The
applicant is having regard to all circumstances which resulted in appellant's
conviction and further keeping in view the fact that the appellant was facing the
trial before the concerned Court for more than 01 year, therefore, he prayed
that the appeal be partly allowed and the sentence awarded to the appellant be
reduced to the period already undergone.
5. 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.30,000/- to
Rs.1,00,000/-.
6. Learned counsel for the State 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.
7. I have considered rival contentions of the parties and have perused the
record.
8. So for as the contentions on merits of the case raised in appeal memo
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.
9 . In so far as the sentence is concerned, learned counsel for the
appellant has alternatively prayed only on the part of sentence and submitted
that since the appellant has already suffered more than six months of his jail
incarceration out of 4 years R.I., he may be released only with the undergone
sentence by enhancing the fine amount.
10. 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 person 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.
11. 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."
12. 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 the 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 in the case of Munna (supra) in
seven months.
13. In view of the aforesaid, the point of sentence is considered. It seems
that the appellant has suffered more than six months of his incarceration out of
04 years. That apart. the appellant has suffered the ordeal of criminal case since
2022. 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.
14.In view of the aforesaid legal proposition regarding non-commercial
quantity 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.
15. Accordingly, this Criminal Appeal is partly allowed and the sentence
under Section8(c)/20(b)(ii)(b) of the NDPS Act awarded to the appellant is
hereby reduced to the period already undergone (i.e. six months ) out of four
years by enhancing the fine from Rs.10,000/- to Rs.1,00,000/-. In case of failure
to deposit the fine amount, the appellant shall further undergo for two months
Simple Imprisonment.
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.
(PREM NARAYAN SINGH)
JUDGE
VD
