Madhya Pradesh High Court
Shravan vs The State Of Madhya Pradesh on 4 March, 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. 10061 of 2023
BETWEEN:-
SHRAVAN S/O DURGA BANJARA, AGED ABOUT 38
Y E A R S , OCCUPATION: AGRICULTURIST VILLAGE
ROOPPURA, PS GAROTH, DISTRICT MANDSAUR
(MADHYA PRADESH)
.....APPELLANT
(SHRI ABHAY SARASWAT -ADVOCATE).
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH POLICE STATION GAROTH,
DISTRICT MANDSAUR (MADHYA PRADESH)
.....RESPONDENT
( SHRI SURENDRA GUPTA- GOVT. ADVOCATE)
Reserved on :29.02.2024
Pronounced on : 04.03.2024
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 06.07.2023, passed by learned
Special Judge, NDPS Act, Mandsour, in S.C.NDPS No.748/2020, whereby the
appellant has been convicted for the offence punishable under Section 8/18(C)
of NDPS Act and sentenced to undergo 5 years RI with fine of Rs.50,000/-,
with default stipulations.
3. As per prosecution story, dated on 09/09/2020, ASI Arjun Singh
P arihar received secret information from informant about one person
transporting illegal contraband Opium on an Maharashtra passing without
number plate old Hero Honda Splendor motorcycle from village Khadawda to
Rajasthan via Garoth to deliver the same to some smuggler. Acting upon the
s aid information, police party prepared necessary punchanams, called two
independent witnesses and reached Bawdikheda Bridge on Khadawda Road
and started checking of the vehicles. After some time, police saw one person
coming towards them on an without number Hero Honda motorcycle which
matches the description as that of the secret information. Police successfully
intercepted the motorcycle and rider revealed his name as appellant Shravan.
Thereafter, police searched and found 02 kg 500 grams Opium from the
possession of present 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 more than one year custody period. The
appellant 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 03 years, 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/-.As well as, in the case of Labhchand vs. State of M.P. passed
in CRA No.1539/2023 and Nitesh Vs. the State of Madhya Pradesh,
passed in CRA No. 15614/2023 which were decided on 16.01.2023
wherein the appeals were partly allowed and the sentence under Section
8(b)/20(a)(i) of the NDPS Act awarded to the appellants were reduced to two
years R.I. from 04 years by maintaining the fine of Rs.50,000/-.
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 one year of his jail
incarceration out of five 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 (CRA 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 reduced the punishment to undergone for approximately two years
out of five years for non-commercial quantity, in the case of Baba @ Akash
Sonkar (supra), reduced the sentence to 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.
13. In view of the aforesaid, the point of sentence is considered. It seems
that the appellant has suffered more than one year of his incarceration out of 05
years. That apart. the appellant has suffered the ordeal of criminal case since
2020. 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 considered.
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 Section 8/15(B) of the NDPS Act awarded to the appellant is hereby
reduced to two years R.I. from five years by enhancing the fine from
Rs.50,000/- to Rs.1,00,000/-. In case of failure to deposit the fine amount, the
appellant shall further undergo for four months R.I.
16. The judgment of learned trial Court regarding disposal of the seized
property stands affirmed.
17. Accordingly, the appeal stands partly allowed and disposed of.
18. A copy of this order be sent to the concerned trial Court for
necessary compliance.
(PREM NARAYAN SINGH)
JUDGE
VD
